(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "1928 Supplement to the Georgia code, 1926 : containing all the general laws of 1927, with full annotations"

Law Library 

University of Georgia 

Athens, Ga. 

Do not remove 







Law 
University 
^ Athet 

Do not 



THE UNIVERSITY OF GEORGIA 
LAW LIBRARY 



i-avv l 







It * " J 

University f Geor™ i 
Athens, Ga. 

"^ ^emoi/e 



ra r v 
; ?f'a 






. §73 



va. 



i*h 



tove 



UNIVERSITY OF GEORGIA LAW LIBRARY 



3 8425 00479 9677 



1 



Law LfotMf 
Universe of q^^ 

Do not 




taw L ibrary 

Un,V( -gia 

Athe . 

j not 










Oo t\o\ remove 









Digitized by the Internet Archive 

in 2011 with funding from 

LYRASIS Members and Sloan Foundation 



http://www.archive.org/details/1928supplementto00unde 



I928 SUPPLEMENT 



TO 



THE GEORGIA CODE 

LaV >rary 

University of Georgia 

Athens, G a. 

Do not remove 

CONTAINING ALL THE GENERAL LAWS 

OF 1927 
WITH FULL ANNOTATIONS 

Law Library 

Universi ty of Ge orgia 

Athens, Ga. 

Do not remove 

UNDER THE EDITORIAL SUPERVISION 
OF 

THOMAS JOHNSON MICHIE 

ASSISTED BY 

A. HEWSON MICHIE 

Law Library 

University of Georgia 

Athens, Ga. 

Do not remove 

THE MICHIE COMPANY, LAW PUBLISHERS 

CHARLOTTESVILLE, VA. 
I928 



Copyright, 1928 

BY 

The Michie Company 



Pref 



rerace 



This compilation constitutes a complete supplement to the Georgia Code of 
1926. It contains all of the general laws of the Legislature enacted during the 
1927 session. The annotations are full and comprehensive. They cover volumes 
161 to 163 of the Georgia Reports, both inclusive, and volumes 34 to 36 of the 
Georgia Appeals Reports, both inclusive. The Federal Reports and United 
States Supreme Court Reports to the date of publication are also included in the 
Supplement. 

The same standard of skillful editorial work which contributed to the popu- 
larity of the Georgia Code of 1926 is maintained throughout this volume. Spe- 
cial attention is directed to the editors' notes, pointing out the changes effected 
by the Acts of 1927. It is believed that these notes will prove invaluable in saving 
the lawyer from laborious comparisons. 



Table of Amendatory Acts 



Civil Code 

Acts 1927 Code 1926 
Page Section 

131 232 

131 233 

135 461 



Acts 1927 Code 1926 
Page Section 

137 1041 

138. 139 ... 1225 
142 3016 



Acts 1927 Code 1926 
Page Section 

175 4870 

224 2938 

272 2177 



Penal Code 

Acts 1927 Code 1926 
Page Section 

135, 193 ... 876 

144 227 

145 1037 



Table of Non-Amendatory Acts 

SHOWING IN WHAT SECTIONS OF THIS SUPPLEMENT THE GENERAL ACTS 
OF 1927, NOT AMENDATORY OF THE CODE OF 1926, ARE EMBODIED. 



Civil Code 

Acts 1927 1928 Supp 
Page Section 

57 ..... 993(169) 
101 1041(17) 

103 1041(1) 

104 . 993(295) 

104 1041(2) 

104 1041(4) 

130 80(b) 

156 . . . 1551(84^) 

158 1551(97) 

160 Ap. I 4(c) 

168 ... 1551(154a) 

174 1551(100) 

191 2119(9) 

195 2366(3) 

195, 197 . . 2366(56) 
195, 198 . . 2366(57) 
195, 198 . . 2366(151) 
195, 199 . . 2366(67) 

195. 199 . . 2366(70) 

195.200 . . 2366(75) 
195, 200 . . 2366(80) 

195.201 . . 2366(148) 

195.203 . . 2366(169) 

195.204 . . 2366(194) 
195, 204 . 2366(195A) 



Vets 


1927 1928 Supp| 


Acts IS 


27 1928 Supp 


Acts 1927 1928 Supp 


Pag< 


i Section 


Page 


Section 


Page 


Section 


195,2 


05 . 2366(195B) 


257 . . 


. . 4804(4) 


333 . 


. . 913(37) 


195, 205 . 2366(196A) 


257 . . 


. . 4804(6) 


333 . 


. . 913(38) 


195, 206 . 2366(196B) 


257 . . 


. . 4804(7) 


335 . 


.. 1227(1) 


196, 198 . .2366(66) 


258 . . 


. . 4804(2) 


337 . 


. . 1227(4) 


201 . 


. . . 2366(159) 


272 . . 


. . 2177(1) 


344 . 


. . 2821(15) 


206 . 


. . . 2067(1) 


279 . . 


. . 1814(4) 


349 . 


. . 2064(1) 


207 . 


. . . 2066(1) 


291 . . 


. . 1731(1) 


352 . 


.. 26(1) 


207 . 


. . . 6017(7) 


299 . . 


. . 2677(16) 


354 . 


. . 1681(27) 


208 . 


. . . 6017(6) 


307 . . 


. . 1896(5) 


373 . 


. . 5240(1) 


20>8 


. . . 6017(8) 


308 . . 


. . 1896(13) 






209 . 


. . . 471(1) 


311 . . 


. . 1248(1) 


Penal Code 


209 . 


. . . 6017(11) 


318 . . 


. . 4901(6) 


108 . 


476(13) 


211 


. . . 615(24) 


322 . . 


. . 913(23) 


147 . 


1138(41) 


215 


. . . 431(4) 


322 . . 


. . 913(24) 


194 . 


. . . . 876(1) 


216 


. . . 5989(3) 


323 . . 


. . 913(25) 


195, 2 


35 . . . 211(15) 


217 


. . . 2042(2) 


324 . . 


. . 913(26) 


222 . 


. . . 1138(3) 


318 


. . . 2042(3) 


324 . . 


. . 913(27) 


262 . 


. . . 1519(44) 


218 


... 3364(1) 


325 . . 


. . 913(28) 


265 . 


. .. 1519(56) 


221 


. . . 5968(1) 


326 . . 


.. 913(29) 


269 . 


. . . 1519(67) 


223 


2501(1) 


327 . . 


. . 913(30) 


317 . 


. . . 1060(2) 


226 


2938(1) 


328 . . 


. . 913(31) 


339 . 


. .. 1236(1) 


227 


1170(60a) 


329 . . 


. . 913(32) 


341 . 


. .. 1259(5) 


245 


913(19) 


330 . . 


. . 913(33) 


343 . 


... 1259(9) 


246 


138(7i4) 


332 . . 


. . 913(34) 


349 . 


... 1259(10) 


247 


1711(7) 


332 . . 


. . 913(35) 


353 . 


. . . 503(10) 


257 


4804(1) 


332 . . 


. . 913(36) 







CODE OF GEORGIA-SUPPLEMENT 



PRELIMINARY PROVISIONS 



§ 4 (§ 4.) Construction of statutes. 

Not a Question for Jury. — It should not be left to the jury 
to determine whether a party could or could not substan- 
tially comply with the code or amendatory laws. L,im*- 
Cola Bottling- Co. v. Atlanta, etc., R. Co., 34 Ga. App. 103, 
128 S. E. 226. 

Reasonable Care Insufficient. — Where a substantial com- 
pliance with a statute by a railway company would be suffi- 
cient, the duty of compliance to that extent would be abso- 
lute, and the company would not have discharged the duty 
merely by the exercise of reasonable care to that end. Lime- 
Cola Bottling Co. v. Atlanta, etc., R. Co., 34 Ga. App. 103, 
128 S. E- 226. 

When Last Day Falls on Sunday — Bill of Exceptions. — 
When the last day numerically for presenting the bill of ex- 
ceptions for certification falls on Sunday, the presentation of 
the bill of exceptions to the trial judge for certification upon 
the next day, Monday, is not too late. Maryland Casualty 
Co. v. England, 34 Ga. App. 354, 129 S. E. 446. 

Service of Process. — The giving of "five days notice of the 
time and place of hearing," required by section 5154, of a 
petition for discharge filed by a defendant in a suit in trover, 
who is held in imprisonment in default of bail, is not com- 
plied with by serving the plaintiff, on the first day of May, 
with notice that the time of hearing the petition will be on 
the fifth day of May following. From the first day of May 
to the fifth day of May is only four days. Hardin v. Mutual 
Clothing Co., 34 Ga. App. 466, 129 S. E. 907. 



§ 10 (§ 10.) Waiver of law. 

Failure to Object to Motion for New Trial. — Any point of 
practice which, if sound, would be fatal to a motion for a 
new trial should be presented to the trial court by a motion 
to dismiss the application for a new trial, and, if not so pre- 
sented, will be considered as having been waived. Walker 
v. Neil, 117 Ga. 733, 45 S. E. 387; Hopkins v. Jackson, 147 
Ga. 821, 822, 95 S. E- 675; Fairburn v. Brantley, 161 Ga. 199, 
130 S. E- 67. 

Waiving Process. — A person is entitled to legal service, 
but may waive service of the original suit by appearing and 
pleading to the merits. Failure to serve a motion for new 
trial will afford grouncL-tfpon which the motion must be dis- 
missed, but the fjtikfre may be waived. Fairburn v. Brant- 
ley, 161 Ga. 199, 130 .8. E- 67. 

§ 13 (§ ia.f^Bonds taken by officers. 

Failing as Statutory Bond — Good as Common Law Bond. — 
Where a bond was made payable to the levying officer and 
was conditioned to deliver the property at the time and place 
of sale but no affidavit of illegality was ever filed or at- 
tempted to be filed, the bond taken is a good and valid ob- 
ligation as a common-law bond and recovery on it can be 
had. Mulllis v. Kennedy, 143 Ga. 618, 85 S. E. 845, cited and 
approved. Garmany v. Loach,; 34 Ga. &PP- ^22, 724, 131 S. 
E- 108 - \ V\ ,^— ^ 




FIRST TITLE 
Divisions; of the Boundary, Sovereignty and Ju- 
risdiction of the State 



THE POLITICAL CODE 



CHAPTER 3 

Jurisdiction Ceded to the United States Over Cer- 
tain Land 
§ 26(1). Land for other public buildings. — The 




SECOND TITLE 

Elections by the People 

CHAPTER l 
Qualification of Voters 
§ 34 (§ 32.) Qualification of voters. 

Failure to Make Return of Taxes. — The failure 




or 



a tax 

Consent of the State of Georgia is hereby given in payer to make a return of his taxes as required by law is 

not, without more, a ground for disqualifying him" as a voter 
for members of the General Assembly. As to taxes, it is 
only non-payment which will disqualify the voter, and even 
then the exception in paragraph 3 must be considered. 
Daniel v. Claxton, 35 Ga. App. 107, 132 S. E. 411. 



accordance with the 17th clause, 8th section, and 
of the first article of the Constitution of the 
United States, to the acquisition by the United 
States by purchase, condemnation, or other- 
wise, any land in this State which has been 
or may hereafter be acquired for custom-houses, 
post offices, arsenals, other public buildings what- 
ever, or for any other government purposes. Acts 
19127, p. 352. 

§ 26(2). Same — Jurisdiction; exemption from 
taxation. — The exclusive jurisdiction in and over 
any land so acquired by the United States shall 
be and the same is hereby ceded to the United 
States for all purposes, except that the state re- 
tains the right to serve thereon all civil and crimi- 
nal processes issued under authority of the state; 
but the jurisdiction so ceded shall continue no 
longer than the said United States shall own such 
lands. 

The jurisdiction hereby ceded shall not vest 
until the United States shall have acquired the 
title to the said lands by purchase, condemnation 
or otherwise; and so long as the said lands shall 
remain the property of the United States when 
acquired as aforesaid, and no longer, the same 
shall be and continue exempt and exonerated from 
all state, county, and municipal taxation, assess- 
ment, or other charges which may be levied or 
imposed under authority of the state. 



CHAPTER 2 
Registration of Voters 



ARTICLE 2 
Method of Registering on Voters' Book 

§ 42 (§ 42.) Oath to be read or repeated at re- 
quest of applicant. 

Signature Required. — One can not lawfully register as a 
voter without signing his name in the voters' book in person 
or by making his mark as prescribed by this section. Turk 
v. Royal, 34 Ga. App. 717, 131 S. E- 119. 



ARTICL^^^V 
Ballots, by Whom and'Wliere feast 

§ 71. Voter changing residence. ' 

Must Apply to Registrjarsi>—One who had mtfved from an- 
other county to that whef^jh an election was held, and, by 
application to the tax-collector of the latter county, had had 
his name transferred ^nd; entered upon the voters' book of 
that county, but at n$ time had-.rnade any application to the 
registrars thereof for such transfer, and had offered no proof 
before them as to his qualifications to vote, was not qualified 
to vote in such bond faction. **Turk v. Royal, 34 Ga. App. 
717, 131 S. E. 119. 



[1] 




§ 80(b) 



BOND COMMISSIONER 



§ 232 



CHAPTER 3 
Elections for Members of the General Assembly 



ARTICLE 3 
Elections; When and How Held 
§ 80(b). In certain counties. — In all counties in 
the State of Georgia, having, by the United States 
census of 1920 or any future census, a population 
of not less than 14,50] and not more than 14,505 
inhabitants, all election precincts which are lo- 
cated as a whole or in part in an incorporated 
city or town having a population of 1,000 or more 
according to the 1920 census of the United States, 
shall remain open on all election days, whether 
general, special, primary or otherwise, from 7 : 1 
o'clock a. m. to 6:00 o'clock p. m. ; provided 
however, that the provisions of this section shall 
not apply to elections that are held by the mu- 
nicipal authorities or the local board of education. 
Acts 1927, p. 130. 

§ 82 (§ 72.) Manner of conducting elections. 

Superintendents Cannot Recount Ballots. — Under the provi- 
sions of this paragraph, superintendents of election have 
neither power nor authority to examine or recount ballots 
cast in a county election for the purpose of correcting er- 
rors, whether the same be due to mistake or fraud as pre- 
scribed by this and the next paragraph of the section. Bacon 
v. Black, 162 Ga. 222, 133 S. E. 251. 



bonds," and that such ballots may have been used, did not 
invalidate the election, notwithstanding the ordinance call- 
ing the election prescribed that the ballots should bear the 
words "for public school bonds for schoolhouse" or "against 
public school bonds for schoolhouse." Edwards v. Clarkes- 
ville, 35 Ga. App. 306, 133 S. E. 45. For similar holding as 
to vote for local taxation in school district, see notes to § 
1551(133) of the Georgia Code of 1926. 

Specifying "Australian Ballot System."— Even in the ab- 
sence of all provisions therefor, to say merely that the 
election was to be held or was held under some system in- 
definitely described as the "Australian ballot system" would 
not affirmatively disclose that the election was void. Ed- 
wards v. Clarkesville, 35 Ga. App. 306, 312, 133 S. E- 45. 



ARTICLE 4 
Penalty for Managers' Default 
§ 84 (§ 74.) In case superintendents make false 
return, etc. 

Superintendent also Liable under iPenal Code. — If the num- 
ber of votes is knowingly and falsely misstated by a super- 
intendent of an election, he has failed to discharge a duty 
imposed upon him by law, and he is liable to be prosecuted, 
under section 658 of the Penal Code, for a misdemeanor al- 
though this section also applies. Black v. State, 36 Ga. App. 
286, 136 S. E. 334. 



CHAPTER 7 
Contested Elections 



ARTICLE 3 
Other Contested Elections 
§ 125 (§ 111.) Contests in other elections. 

Jurisdiction of Ordinary — Mandamus to Compel Hearing.— 

Where on the hearing of a contested election case before an 
ordinary, the contestee filed a demurrer to the petition, 
which demurrer was sustained and the ordinary dismissed 
the contest proceedings, and the contestant filed a petition 
against the ordinary for a writ of mandamus to compel the 
ordinary to hear and determine such election contest, alleging 
that the ordinary had failed and refused to perform his legal 
duty in the premises; the court did not err, in granting an 
order making the mandamus absolute, and requiring the 
ordinary to hear and determine such contest. Morgan v. 
Wason, 162 Ga. 360, 133 S. E. 921. 



CHAPTER 8 
Primary Elections 
§ 138(7%). Nominations for General Assembly 
members and Superior Court Judges in certain 
counties; specification of incumbent opposed; plu- 
rality. — Candidates for the General Assembly in 
all counties having within its borders a city or a 
part of a city of population of 200,000 or more and 
candidates for Judges of the Superior Court in all 
judicial circuits having a county or counties of 
population of 200,000 or more, according to the 
last or any future census of the United States, 
shall, when qualifying for a primary, specify the 
particular incumbent which said candidate de- 
sires to oppose or succeed, and all ballots shall be 
prepared accordingly. The candidate receiving a 
plurality of the votes cast for candidates for such 
office shall be declared the nominee therefor. Acts 
1925, p. 205; 1927, p. 246. 

Editor's Note. — The amendment of 1927 limited the pro " 
sion as to candidates for the General Assembly, to counties 
"having within their borders a city or a part of a city." 



THIRD TITLE 



CHAPTER 2 
The Secretary of State, Treasurer, Comptroller- 
General, and Attorney- General 



ARTICLE 4 
Elections Not Set Aside for Formal Defects, 

When 

§ 126 (§ 112.) Election not void by reason of 
formal defects. 

Violation of Directory Provision Harmless. — An election 
was not invalid because it did not appear that the mayor 
and council had published the names of the election man- 
agers in accordance with a certain provision of the city 
charter, for this provision is directory. Edwards v. Clarkes- 
ville, 35 Ga. App. 306, 133 S. E. 45. 

Ballots Improperly Marked. — That the notice to the voters 
provided that the ballots should have written or printed 
thereon the words "for school bonds" or "against school 



SECTION 10 
Bond Commissioner 

§ 232. State treasurer ex-officio Bond Commis- 
sioner. — The State Treasurer shall be ex-officio 
Bond Commissioner of this State, and as such 
he shall receive a salary of $1,200.00 per annum; 
and he is hereby authorized to appoint the chief 
clerk in the treasury department, or some other 
fit and competent person, to be Assistant Com- 
missioner, and said assistant shall receive a salary 
of $1,200.00 per annum; and said Bond Commis- 
sioner shall be allowed such sum as may be nec- 
essary, not to exceed the sum of $10,000.00 per 
annum, for clerical assistance in performing the 
duties of his office, which said sum, together with 
the salaries of the Bond Commissioner and the 
Assistant Bond Commissioner, shall be paid from 
the State Treasury; it shall be the duty of the 
Bond Commissioner and his assistant to receive, 
file, record, care and provide for the deposit of 
bonds or other securities offered for deposit as 
the law may direct. Acts 1909, p. 145; 1923, p. 
132; 1927, p. 131. 

Editor's Note.— The amendment of 1927 wrought many 
changes in the phraseology of this section. The substantial 
innovations consist of the provision for a $12,000 salary for 
both the Bond Commissioner and the Assistant Bond Com- 
missioner, and the provision for allowance of $10,000 for 
clerical assistance, and the source of its payment. 



[2] 



§ 233 



INCORPORATION OF COUNTIES, ETC. 



§ 354 



§ 233. Fees of commissioner. — Each and every 
depositing corporation or individual of whatever 
name or class, which now has or may hereafter 
have on deposit bonds or other securities, as the 
law provides, is hereby required, within sixty days 
from and after August 14th, 1909, and thereafter 
on or before January 15th of each year, to pay 
the said bond commissioner the following sched- 
ules of fees, namely: Bonds or other securities ag- 
gregating not over $5,000.00, $2.00; not over 
$10,000.00, $3.75; not over $25,000.00, $7.<50; not 
over $50,000.00, $12.50; not over $100,000.00, 
$20.00; more than $100,000.00, $25.00; provided, 
however, that the W. & A. R. R. lessees shall be 
exempt from the operation of this section. All 
fees collected as aforesaid shall be paid into the 
general funds of the state treasury. In default of 
the payment of the fees herein prescribed, the 
bond commissioner shall refuse to accept the de- 
posits required by law to be made, and shall not 
certify their acceptance until the fee is fully paid 
each year as herein provided, hut shall report 
said default to the insurance commissioner, who 
shall suspend or revoke the license of said delin- 
quent company or individual until the fee required 
under this section is fully paid. Acts 1927, p. 131. 



FOURTH TITLE 
General Regulations as to All Officers and Offices 



CHAPTER l 

Of Eligibility, Qualification, and Commissions of 
Officers, and Vacation of Officers 



ARTICLE 1 

Eligibility and Qualification 

§ 258 (§ 223.) Persons ineligible; de facto offi- 
cers. 

Pribr Removal for Misconduct. — The conviction of an offi- 
cer for misbehavior and misconduct in office in the illegal 
appropriation of public funds, and his removal from office, 
are equivalent to an adjudication that he is ineligible to 
hold said office for and during the remainder of the term 
for which he was elected. McClellan v. Pearson, 163 Ga. 
492, 136 S. E. 429. 

§ 261 (§ 226.) Officers of this State must re- 
side therein, hold until successor is qualified, and 
keep seal. 

Liability on Bond Continues. — The effect of this section is 
to extend the term of office under the original appointment 
until a successor has been qualified, with the further effect 
that liability on an official bond continues where an official 
elected for a fixed period thereafter holds over, after its ex 
piration, until his successor is appointed. Emberton v. Jones, 
35 Ga. App. 536, 133 S. E- 745. 



CHAPTER 3 
Official Bonds and Sureties Thereon 



tion of liquor) commits a wrongful act under color of his of- 
fice. Copeland v. Dunehoo, 36 Ga. App. 817, 138 S. E- 267. 

Acts Entirely Unauthorized Not Breach of Bond. — A tax- 
collector, having no authority of law whatever to make lev- 
ies and sales under tax fi. fas., issued a fi. fa. purporting 
to be for taxes due, and placed it in the hands of another 
as his deputy, who, "armed" with the fi. fa. and acting un- 
der the instructions of the tax-collector, seized property of 
the alleged taxpayer and sold it, to the owner's damage. It 
was held that such acts constituted no breach of the tax- 
collector's bond and the surety on the bond was not liable 
therefor. Fidelity, etc., Co. v. Smith, 35 Ga. App. 744, 134 
S. E. 801. 



ARTICLE 5 
Bonds; How Far and for What Binding 

§ 291 (§ 256.) Official bonds obligatory. 

Color of office is defined in Fidelity, etc., Company v. 
Smith, 35 Ga. App. 744, 748, 134 S. E- 801, quoting Luther v. 
Banks, 111 Ga. 374, 36 S. E- 626. 

When Acts Colore Officii — Illustration. — An officer shoot- 
ing at the occupants of an automobile who have fled from 
an attempted arrest for a misdemeanor (illegal transporta 

[3 



ARTICLE 10 
Measure of Damages on Bonds 
§ 299 (§ 264.) Measure of damages. 

Meaning of "Smart- Money." — The term "smart-money," 
as employed in this section seems to be substantially sy- 
nonymous with "punitive damages." Copeland v. Dunehoo, 
36 Ga. App. 817, 821, 138 S. E- 267. Thus this section seems 
to be an exception to section 4393. Id. 

What Amounts to Bad Faith. — Any arbitrary omission by 
the officer to do that which is required of him by law, or 
any conscious disregard of the limitation upon his authority, 
would amount to bad faith within the meaning of that term 
as employed in this section. Copeland v. Dunehoo, 36 Ga. 
App. 817, 824, 138 S. E- 267. See note of this case under sec. 
2549. 

Statement of Injury. — In an action for damages because of 
the alleged breach of the official bond of a former clerk of a 
city court, it not appearing from the petition that any ac- 
tual injury was sustained by the plaintiff by reason of 
the alleged breach, the petition did not set out a cause of 
action. Donaldson v. Walker, 35 Ga. App. 224, 132 S. E- 649i 



CHAPTER 4 
Powers of Public Officers Limited 

§ 303 (§ 268.) Powers of public officers. 

As to liability on unauthorized acts of school trustees, see 
note to sec. 1551(141). 
When Public Is Estopped — Statements Without Authority. 

—In Gill v. Cox. 163 Ga. 618, 137 S. E- 40, it was held that 
the state is not estopped by statements made by the state 
veterinarian, said statements not being made in the exercise 
of any legal authority. 



FIFTH TITLE 

Legislative Department 



CHAPTER 1 
Of the General Assembly 



ARTICLE 8 
Pay of Members 
§ 354 (§ 312.) Accounts of members and officers, 
how audited^ 

In General. — By this section a method is provided for de- 
termining what compensation, including per diem, is due to 
the members of the General Assembly. This statute estab- 
lishes a special tribunal for the determination of the mat- 
ter in question. There certainly should be no judicial inter- 
ference with this method and this tribunal, before any ac- 
tion is taken by this special tribunal, by assuming that it 
will certify per diem to which members are not entitled 
under the constitution. Speer v. Martin, 163 Ga. 535, 537, 136 
S. E. 425. 



SIXTH TITLE 
County Organization 



CHAPTER 2 
Incorporation of Counties, County 
Property, and Claims 

] 



Contracts, 



§ 383 



CONTRACTS, HOW MADE BY COUNTIES 



§ 389(2) 



ARTICLE l 
Counties Are Corporate Bodies 
§ 383 (§ 340) Each county a body corporate. 

Construed with Section 384. — Sections 383 and 384 must be 
construed together, and they must receive a reasonable con- 
struction. Decatur County v. Praytor, etc., Co., 163 Ga. 
929, 931, 137 S. E- 247. 

Extent of Power Conferred. — This section subjects the 
counties of this State to suit, but not to suits upon all causes 
of action. It does not make them generally liable to suits, 
like individuals or as municipal corporations. Being politi- 
cal subdivisions of the State, they can not be sued unless 
made subject to suit expressly or by necessary implication. 
Decatur County v. Praytor, etc., Co., 163 Ga. 929, 931. 137 S. 
E. 247. 

A county can always be sued upon any liability against it 
created by statute, or for breach of any valid contract which 
it is authorized by law to make. Decatur County v. Praytor, 
etc., Co., 163 Ga. 929, 935, 137 S. E- 247. See sec. 384 and the 
notes thereto. 



ARTICLE 2 
Suits against Counties 
§ 384 (§ 341.) County, when liable to suit. 

Editor's Note. — This section was codified from the deci- 
sions of the court in the cases of Hammond v. Richmond, 72 
Ga. 188, and Smith v. Wilkes & McDuffie Counties, 79 Ga. 
125, 4 S. E- 20, and it must be construed in the light of these 
decisions. See Decatur County v. Praytor, etc., Co., 163 
Ga. 929, 932, 137 S. E- 247. 

Broad Terms. — Language could not be broader or more 
comprehensive, or more free from doubt, than the words of 
this section. When it says the county shall not be liable 
for any cause of action, it expressly negatives the idea of 
exceptions other than provided therein, to wit, "unless made 
so by statute." Wood v. Floyd County, 161 Ga. 743, 745, 131 
S. E. 882. 

General Rule. — Whenever a county is by statute made 
liable for a given demand, an action against it will lie there- 
for, though the statute does not in express terms authoriza 
or provide for the bringing of such an action. Decatur County 
v. Praytor, etc., Co., 163 Ga. 929, 933, 137 S. E. 247, citing nu- 
merous cases. 

Liability in Case of Bridges. — A county is liable to suit by 
contractors for breach of a valid and binding contract for 
the building of a bridge over a river in such county, upon 
the assumption that the difference between the representa- 
tions in the plans and specifications as to the facts and condi- 
tions under the bed of tfie river, and the actual facts and 
conditons thereof, amounted to a breach of the contract by 
the county. Decatur County v. Praytor, etc., Co., 163 Ga. 
929, 137 S. E. 247. 

When County Officials Exceed Powers. — "When public of- 
ficers, in discharging duties imposed upon them by law, under- 
take other duties not imposed by law, although intending 
it to be a benefit to the public, the latter, as represented by 
county governments, can not be made responsible for torts 
or ultra vires contracts." Wood v. Floyd Countv, 161 Ga. 743, 
748, 131 S. E- 882. 



ARTICLE 3 

Contracts, How Made by Counties, Competition 
in Bidding 

§ 389 (1). Contract for public work void with- 
out bond. 

What Constitutes "Doing Work." — An employee of the con- 
tractor is not doing work "under and for the purpose of" the 
contract where he is engaged only in "winding up the af- 
fairs" of his employer in the particular location, such as 
collecting and looking after the machinery and "shipping it to 
the next work they were going to do," all of this being done 
after the work had been fully completed and after the mu- 
nicipality has formally and finally accepted the same as a 
compliance with the contract between it and the contractor. 
Southern Surety Co. v. Williams, 36 Ga. App. 692, 137 S. E- 
851. 

Bond Protects Two Classes. — The bond required by this sec- 
tion is for the use of two classes of persons: first, the muni- 
cipality, and second, "all persons doing work or furnish- 
ing skill, tools, machinery, or materials under or for the pur- 
pose of such contract." Both classes of persons are entitled 



to protection under the bond. Southern Suretv Co. v. Dawes, 
161 Ga. 207, 212, 130 S. E- 577. 

Necessity of Stating "Use" in Bond. — In an action by the 
trustees of a school district "for the use" of a material- 
man, who furnished material used in the construction of a 
school building, against a bonding company as surety upon 
the bond given by the contractor, where the bond contained 
no provision that it was given "for the use of the obligee and 
of all persons doing work or furnishing skill, tools, machinery 
or materials under or for the purpose of such contract," nor 
any similar clause, but specifically provided that "no right 
of action shall accrue for the use or benefit of any other than 
the obligee," the trustees can have no recovery on the bond 
merely "for the use" of the materialman. Massachusetts 
Bonding, etc. Co. v. Hoffman, 34 Ga. App. 565, 130 S. E. 375. 

A bond which does not use the words "for the use of," but 
the expressed obligation is to both "the City of Thomas- 
ville" and "all persons doing work or furnishing skilled labor, 
tools, machinery, or materials under or for the contract," is 
a sufficient statutory bond under the section, notwithstanding 
it does not expressly employ the words "for the use of" the 
municipality or the members of the other class. Being such 
statutory bond, a materialman, coming under the second class 
of obligees can in his own name bring a suit on a certified 
copy thereof, as is expressly provided in section 389 par. 4. 
Southern Surety Co. v. Dawes, 161 Ga. 207. 211, 130 S. E- 577. 

Bond Covering Two Principals. — Where a bond specifies 
two corporations as principal and a surety company as se- 
curity, and a suit is brought on the bond by a person cf 
the second class, who alleges in the petition that certain ma- 
terials for which he seeks a recovery were furnished by him 
to one of the corporations named as principal, and that only one 
of such principals contracted with the municipality, such al- 
legation would not alone operate to discharge the surety on 
the bond. In the absence of fraud, accident, or mistake induc- 
ing the surety to excute the bond, he will be bound by his con- 
tract as surety for both of the corporations named as prin- 
cipals in the bond, and will not be relieved by mere allegation 
in the petition that only one of the named principals to whom 
the materials were alleged to have been furnished was a con- 
tractor with the municipality. Southern Surety Co. v. Dawes, 
161 Ga. 207, 213, 130 S. E- 577. 

Liability of County for Failure to Take Bond. — A county 
which has failed to take from the contractor the statutory 
bond required under this act, is liable to any person furnish- 
ing material to the contractor for the purpose of the con- 
tract, for any loss resulting to such person from the 
failure of the county to take the required bond. De- 
catur County v. Southern Clay Mfg. Co., 34 Ga. App. 
305, 129 S. E- 290; Ty Ty Consol. School Dist. v. Colquitt 
Lumber Co., 153 Ga. 426, 112 S. E- 561, and Hannah v. Love- 
lace-Young Lumber Co., 159 Ga. 856, 127 S. E. 225, were 
cited in this case. Ed. Note. 

Same — Necessity for Work to Be Completed. — It is not es- 
sential to the county's liability under this act that the work 
for which the county contracted shall have been completed. 
Decatur County v. Southern Clay Mfg. Co., 34 Ga. App. 305, 
129 S. E. 290. 

Notice as Affecting Liability of Public Body. — A public body 
can not, by notice to a materialman of its intention to pay 
direct to the contractor all bills for material which may be 
furnished to the contractor by the materialman for the pur- 
pose of the contract, and that it will not be liable to the ma- 
terialman for such material, relieve itself of the statutory li- 
ability imposed upon it by this act, for loss to a materialman 
resulting from the failure of the public body to take the 
bond required. Nor will such notice to the materialman ope- 
rate to estop him from asserting his right, under the statute, 
to hold the public body liable. Board v. United States Sup- 
ply Co., 34 Ga. App. 581, 131 S. E. 292. 

Suit on Bond by Materialman, Workers, etc. — A material- 
man furnishing material to the contractor in making the 
improvements specified in the contract can in his own name, 
where the city fails to sue in the time prescribed by the act, 
maintain an action on the bond, although the bond does 
not expressly state that it is "for the use of" persons furnish- 
ing material for construction of the improvement. Southern 
Surety Co. v. Dawes, 161 Ga. 207, 130 S. E. 577. 

Substitutions of Parties Plaintiff. — Where a materialman 
improperly brought suit in his own name against the surety, 
and it appeared that under the terms of the bond no indemnity 
was provided in behalf of the materialman, an amendment 
was not allowable making the suit proceed in the name of 
the county for the use and benefit of the materialman. Ameri- 
can Surety Co. v. Bibb, 162 Ga. 388, 134 S. E. 100. 

§ 389 (2). Approval and filing of bond. 

Trustees Not Surety Liable. — The liability of the trustees 
under this section, if existing, would not be one in which the 
surety on the bond actually taken would be concerned where 



4] 



§ 389(4) 



COUNTY AND MUNICIPAL BONDS AND DEBTS 



§ 440 



the bond contained no provision for the assumption of it. 
In other words, if it could be said that the trustees had sub- 
jected themselves to liability to the materialman in failing 
to take a proper bond, the resulting damage to them would 
flow from their own default, and not from the failure of the 
contractor to perform his contract. The surety on the 
bond which they actually obtained would not ordinarily 
be liable for damage suffered by them because of their failure 
to comply with the law and take a bond of different character. 
Massachusetts Bonding, etc., Co. v. Hoffman, 34 Ga. App. 
565, 568, 130 S. E. 375. 

§ 389 (4). Action on bond. 

In General. — This section specifies the order in which each 
class may sue on the bond. The municipality primarily may 
bring a suit on the bond, in which event the remedy of any 
person in the second class is by intervention in such suit; but 
if the municipality does not bring a suit within 90 days after 
the completion of the contract and acceptance by the mu- 
nicipality, any person of the second class may bring a su.t 
upon the bond for the enforcement of any right concerning 
which the bond affords him protection. Southern Surety Co. 
v. Dawes, 161 Ga. 207, 212, 130 S. E. 577. 

This section is express authority for a person of the sec- 
ond class who has furnished material to a contractor for mak- 
ing a public improvement, to bring an individual suit upon 
the bond for his own benefit. Southern Surety Co. v. Dawes, 
161 Ga. 207, 215, 130 S. E- 577. 

Purpose of Provision for Certified Copy of Bond. — The pro- 
vision for the obtainment of a certified copy of the bond and 
the basing of a suit thereon is for convenience of persons en- 
titled to sue on the bond, and is not to be construed as re- 
quiring a suit to be based on such certified copy rather than 
upon the original bond. To make such requirement would 
place the certified copy above the original bond, with no 
reason for making any such technical distinction. The cause 
of action, if any, arises from the contract embodied in the 
bond, not from the primary or secondary character of the 
paper that might be set out in a petition suing on the bond. 
Southern Surety Co. v. Dawes, 16l' Ga. 207, 212, 130 S. E. 
577. 



ARTICLE 11B 

Residue of Bond Issue Used for Improvements 

§ 431 (4). Use of balance of proceeds of bond 
issue, to pay warrants in certain counties. — The 

ordinaries or boards of county commissioners, or 
other county authorities in this State where such 
boards exist, and who have the management of 
the revenues of the counties, in all the counties in 
this State having a population of not less than 
11,170 nor more than 11,200 according to the 1920 
census, are hereby authorized and empowered, 
whenever the purposes of a county bond issue has 
been accomplished, which fact is to be judged of 
by said county authorities in their discretion, and 
there remains a balance of the proceeds of said 
bond issue on hand, to use said balance in the sat- 
isfaction of outstanding warrants representing the 
costs of permanent county improvements, or in 
making permanent county improvements. Acts 
1927, p. 215. 



ARTICLE 6 
Claims against Counties 



§ 411 (§ 362.) Claims to be presented, when. 

In General. — Under this section a cause of action against 
a county such as can be recovered upon does not exist un- 
less the claim has been presented within twelve months 
after its accrual. Atlantic Coast Line R. Co. v. Mitchell 
County, 36 Ga. App. 47, 48, 135 S. E. 223. 

Allegation of Time. — An action against a county, brought 
in 1923, to recover taxes alleged to have been illegally levied 
and collected in 1919, and alleging that a month before the 
filing of the suit a demand that the taxes so collected be 
refunded was made upon the county authorities and refused, 
was barred, under this section. Atlantic Coast Line R. Co. 
v. Mitchell County, 36 Ga. App. 47, 135 S. E- 223. 

County Warrants. — County warrants are not such claims 
as are required by this section to be presented withm 
twelve months after they accrue for the statute of limita- 
tions does not begin to run against county warrants until 
a demand for payment is repudiated or a fund out of which 
they can be paid is provided. Central, etc., R. Co. v. 
Wright, 35 Ga. App. 144, 132 S. E. 449. 

Claim of Payee of Void Note.— A claim against a county 
by a payee of a void note for money used by the county and 
paid out on outstanding valid warrants, even if enforceable 
against the county, was barred under this section, where 
not presented within 12 months after accrual. Farmer's 
Loan, etc. Co. v. Wilcox County, Ga., 2 Fed. (2d), 465. 

Salary of Commissioner. — This section is not applicable to 
allowances for salary of the road commissioner under a 
local law as his salary is an allowance provided by law for 
the benefit of the commissioner as a public officer, and has 
no reference to contract or breach of duty. Sammons v 
Glascock County, 161 Ga. 893, 131 S. E. 881. 



ARTICLE llA 

Co-operation of Counties with Municipalities for 
Improvements 

§ 431 (1). Co-Operation lawful. 

Cited in Decatur County v. Praytor, etc., Contracting 
Co., 163 Ga. 929, 935, 137 S. E. 247. 



ARTICLE 12 

System of Drainage 

§ 439 (34). Bonds for drainage, how issued and 
collected. 

Sale of Bonds as Prerequisite to Validity of Contract. — 

A contract is not in any wise invalid by reason of the fact 
that there has been no actual sale of drainage bonds, assess- 
ments for the improvements having been previously made 
to an amount exceeding the total amount of the drainage 
contract. Board v. Williams, 34 Ga. App. 731, 732, 131 S. 
E- 911. 

Effect of Collection upon Validity of Contract. — Where 
the total liability under the drainage contract was within 
the total amount of assessments, the contract was not 
thereafter rendered invalid by reason of the fact that such 
assessments were not collected or enforced, or by reason of 
the fact that the full par value of all the drainage bonds 
sold did not come into the district treasury, as this act 
requires. Board v. Williams, 34 Ga. App. 731, 733, 131 S. 
E- 911. 

Redemption of Land Sold. — This law does not expressly 
give the right to redeem where land is sold under execution 
issued for an assessment to meet principal or interest, or 
the cost of draining the land, in a drainage district. Sig- 
mon-Reinhardt Co. v. Atkins Nat. Bank, 163 Ga. 136, 135 S. 
E. 720. 

The only language of this section bearing upon exemp- 
tions simply means that executions issued to collect an 
assessment are collected in the same manner as tax execu- 
tions are collected. The procedure for their collection is 
the same as the procedure for the collection of tax execu- 
tions. This is a different thing from giving to any lien- 
holder, or person having an interest in the land, the right 
to redeem. Sigmon-Reinhardt Co. v. Atkins Nat. Bank, 
163 Ga. 136, 138, 135 S. E- 720. 



CHAPTER 3 

County and Municipal Bonds and Debts — Sink- 
ing Funds 



ARTICLE 1 

Election on Issue of Bonds or Incurring New 
Debt 

§ 440 (§ 377). Notice of election on issue of 
bonds. 

I. IN GENERAL. 
Issue of Bonds in Installments. — Nothing in the constitu- 
tion or this section is inconsistent with authorization of an 
issue of bonds in installments and the levy of the tax for 
the payment of each installment in the year of its issue. 
Brady v. Atlanta, 17 Fed. (2d), 764. 



[5] 



§ 444(1) 



CHANGE OF COUNTY LINES 



§ 471(1) 



II. SUFFICIENCY OF NOTICE. 

Publication — For Thirty Days. — Where it appeared that an 
election was held on Saturday, January 23, 1926, and that 
notice thereof had been published in the proper newspaper 
once a week for six weeks, beginning on Friday, December 
18, 1925, and ending on Friday, January 22, 1926, since the 
notice was inserted the -first time at least 30 days before 
the date of the election and as nearly that precise number 
of days immediately preceding such date as was possible 
under the circumstances, the fact that the publication ■ be- 
gan more than 30 days prior to such date was immaterial 
and afforded taxpayers no cause for attacking the validity 
of the notice. Clark v. Union School Dist., 36 Ga. App. 80, 
135 S. F- 318. 

Notice Affecting Custodian of Funds. — In Bank v. Hage- 
dom Const. Co., 162 Ga. 488, 134 S. F. 310, it was held that 
a bank as custodian of the proceeds of county bonds is 
chargeable with the notice given under this section as to 
the purpose of the bond issue and must not permit the 
funds to be used for other purposes. 

§ 444 (1). Bonds of municipalities to be issued 
without referendum. 

By the act of 1921, p. 212, the certificate of the chief of 
construction, that the petition was signed by the owners of 
more than fifty per cent of the property abutting on the 
street or portion* of the street sought to be paved, is made 
prima facie evidence of this fact. The act of 1919 makes 
this prima facie / presumption conclusive, if the owners do 
not file objections to the passage of the preliminary ordi- 
nance providing for the payment. Montgomerv v. Atlanta, 
162 Ga. 534, 545, 134 S. E. 152. 



ARTICLE 2 

Bonds, How Validated 

§ 446. Duties of the attorney-general or solici- 
tor-general. 

Sufficiency of Petition. — It is necessary, of course, to state 
the facts, and this should be done with sufficient partic- 
ularity to meet the requirements of good pleading. A peti- 
tion which fails to show, except by a bare conclusion, that 
the election resulted prima facie in favor of the issuance of 
the bonds is fatally defective and subject to general de- 
murrer. Fdwards v. Clarkesville, 35 Ga. App. 306, 310, 133 
S. F. 45. 

Same — Unnecessary Allegations. — The law does not re- 
quire an allegation as to publication of the notice to the 
voters, or as to the furnishing of the list of the registered 
voters (it being sufficient merely to show the number of 
such voters), or as to the city's indebtedness not exceeding 
the limit allowed by the constitution. Fdwards v. Clarkes- 
ville, 35 Ga. App. 306, 310, 133 S. F- 45. 

§ 447. Trial of the case and bill of exceptions. 

Court Can Determine Validity of Votes. — In a proceeding 
to validate bonds, it is within the power and jurisdiction 
of the superior court, upon proper pleadings and sufficient 
evidence, to pass upon the validity of any votes cast in the 
election, and to eliminate such votes as are shown by the 
pleadings and the evidence to be illegal. Turk v. Royal, 34 
Ga. App. 717, 131 S. E: 119. 

Burden on State to iProve Material Facts. — See Clay v. 
Austell School Dist., 35 Ga. App. 109, 132 S. F. 127, quoting 
the paragraph set out under this catchline in the Georgia 
Code of 1926. 

Final Judgment Prerequisite to Bill of Exceptions. — Where 
an answer filed by intervenors is dismissed as being insuffi- 
cient to prevent validation, but the order of dismissal pro- 
vides merely that the petitioners "may take an order con- 
firming and validating," it does not constitute a final 
judgment "confirming and validating the issuance of the 
bonds" from which a bill of exceptions will lie, as provided 
by this section. Veal v. Deepstep Consol. School Dist., 34 
Ga. App. 67, 128 S. F- 223. 

§ 461. Bonds for refunding or paying off prior 
issue. — Any county or municipality, desiring to 
validate any issue of bonds proposed to be issued 
for the purpose of refunding or paying off and dis- 
charging a prior issue of bonds issued by such 
county or municipality, may have the same vali- 
dated before issuing, in the manner hereinbefore 
provided, by presenting a petition to the solicitor- 



general of the circuit in which said county or 
municipality is located, or to the attorney-general 
of the State of Georgia when the solicitor-general 
is absent from his circuit, setting forth a full de- 
scription of the bonds to he issued, as well as the 
bonds to ibe paid off by such refunding issue, with 
a full copy of the resolution and all proceedings 
authorizing the original issue of said bonds 
sought to be paid off by the refunding issue, also 
resolutions and proceedings authorizing the re- 
funding issue of bonds. Such petition, being pre- 
sented to the solicitor-general, or the attorney- 
general, as the case may be, it shall be the duty 
of such officer to bring proceedings for the valida- 
tion of such issue of refunding bonds in the mat- 
ter hereinbefore provided, save and except that in 
such cases the county or municipality seeking the 
validation of such bonds shall pay all court costs, 
and the fee of $25.00 to the solicitor-general. But 
no bonds shall be allowed validated hereunder 
that have been issued for a bonded debt created 
since the Constitution of 1877. Acts 1927, p. 135. 

Editor's Note.— Prior to the amendment of 1927 only bonds 
issued between the adoption of the Constitution of 1887 and 
the passage of the Act of 1897 could be validated by the 
operation of this section. 



CHAPTER 4 
Change of County Lines 

§ 471(1). Election in town of 400 to 500 popu- 
lation — Whenever the boundary lines of one or 
more of the counties of this State shall lie within 
the corporate lines of any town or city haying a 
population of not less than four hundred or more 
than five hundred inhabitants, according to the 
census of 1920 or any future census, and it is de- 
sired to change the county lines and bring the 
said town or city wholly within the limits of one 
county only; the change of such county Lines shall 
be effected in the following manner: 

Whenever a petition, signed by not less than 
thirty qualified voters of said town or city shall 
be addressed to the governing authorities of said 
town or city asking that an election shall be held 
as in this Act prescribed, provided that there shall 
be not less than fifteen petitioners from each of 
the counties whose boundary lines lie within the 
corporate limits of said town or city, and said peti- 
tion be approved by a majority of the members 
of the governing board of said town or city, it 
shall be the duty of said governing authorities to 
submit the matter, as herein provided, to the law- 
ful voters of said municipality at any general elec- 
tion therein, or at any special election held for 
that purpose, after advertising the same in either 
case once a week for four weeks in the public 
gazette in which sheriff's advertisements are pub- 
lished in each of the counties whose boundary 
lines lie within the limits of said municipality, and 
also in the public gazette in said municipality if 
there be one published therein. Said special elec- 
tion shall not be held earlier than thirty days after 
the publication of first notice, and shall be held 
under the same rules and regulations as provided 
for the election of members of the General As- 
sembly. At any such general or special election, 
the question shall be submitted in such manner as 
to enable each voter to say whether he desires a 

6] 



§ 504 



COUNTY REVENUE 



§ 530 



change in existing boundary lines so .as to bring 
the municipality wholly within the line of one oi 
the adjacent counties, and which of the adjacent 
■counties he desires the municipality to be included 
within. Whenever at such general or special elec- 
tion, a majority of the votes oast shall ibe in favor 
of changing the county lines so as to bring the 
municipality wholly within the line of one of the 
adjacent counties, and a majority of the votes 
cast shall be in favor of one of said adjacent 
counties, the mayor and clerk of said town or city 
shall within thirty days certify and declare the re- 
sult of said election to the ordinaries or board of 
county commissioners or other officers having the 
control of the county business in each of the 
county [counties] affected. The said municipal 
and county authorities shall thereupon proceed to 
readjust and change the lines of the counties af- 
fected, in such manner as to include the said 
municipality wholly within the limits of the par- 
ticular county fixed upon by said election, and 
shall cause a description and map of the new line 
to be filed and recorded in the office of the clerks 
of the Superior Courts of each county affected, 
and shall cause an official notice of the change 
and description to be published once a week for 
four weeks in a public gazette in their respective 
counties; and thereupon the new line or lines 
shall be held to be established in lieu of the origi- 
nal line or lines. The costs of said proceedings 
shall be paid by the said town or city desiring the 
same. Acts 1927, p. 209. 



CHAPTER 7 
County Revenue 



ARTICLE l 
From Taxation 



SECTION 1 
Special and Extra Tax 
§ 504. (§ 395.) Extra tax, how levied 

Public Improvements. — The object stated in paragraph 2 
of section 513, although for a county purpose, is held not 
to be within the purview of section 508; consequently, a tax 
''to build or repair courthouses or jails, bridges or ferries, 
or other public improvements, according to contract" does 
not require the recommendation of a grand jury. Seaboard 
Air Eine R. Co. v. Wright, 34 Ga. App. 88, 90, 128 S. E. 234. 
See note of this case under § 507. 

§ 507. (§ 398.) Tax not sufficient. 

Gives County Four Years. — This section clearly provides 
that the county under certain contingencies may have four 
years in which to pay its accumulated debt. Central, etc., 
R. Co. v. Wright, 35 Ga. App. 144, 153, 132 S. E- 449. 

Nature of Tax. — See Seaboard Air-Eine R. Co. v. Wright, 
34 Ga. App. 88, 89, 128 S. E- 234, which contains the same 
holding set out under this catchline in the Georgia Code of 
1926. 

Same— Editor's Note. — The question as to the amount of the 
tax which the county authorities can levy under this section 
to pay current expenses seems to be at present somewhat in 
doubt. By the holding in Southwestern R. Co. v. Wright, 
156 Ga. 1, 118 S. E- 552 and Central of Ga. R. Co. v. Wright, 
156 Ga. 13, 118 S. E. 709 the authorities may legally levy a 
tax not exceeding 100 per cent of the state tax to pay ac- 
cumulated debts or current expenses or either. This is by 
virtue of this section. However in Seaboard Air Line v. 
Wright, 161 Ga. 136, 129 S. E. 646, it was held that the levy 
of a tax for the purposes specified in section 508 cannot ex- 



ceed 50 per cent of the state tax and that this limit extends 
to current expenses. This decision seems in direct conflict 
with the holding in the two cases, supra, but the court did 
not refer to them. The same question arose in Central, etc. 
R. Co. v. Wright, 36 Ga. App. 386, 137* S. E- 93 and the 
Court of Appeals after considering both cases declined to 
follow the Seaboard Case, supra, and upheld the power to 
levy the 100 per cent tax. 

In considering Central, etc., R. Co. v. Wright, 36 Ga. App. 
386,. 137 S. E. 93, it should be noted that in this case certio- 
rari was granted by the Supreme Court and also that there 
is another case between the same parties and involving the 
same point before that court at the present time. 

"Current Expenses." — It may be said generally that "cur- 
rent expenses" include the ordinary expenses of the county 
arising during the year for which the tax is levied, and 
"county purposes" include all purposes for which county 
taxation may be levied; that is, the ordinary expenses of 
the county and the unusual and extraordinary expenses as 
well. Seaboard Air-Line R. Co. v. Wright, 34 Ga. App. 88, 
90, 128 S. E. 234. This case also adopts the holding set out 
in the first and second paragraphs under this catchline in 
the Georgia Code of 1926. 

§ 508. (§ 399.) Tax for county purposes. 

County Purposes. — See note "Current Expenses" under 
section 507. See, also, note under section 504. 

Same — Includes Current Expenses. — The levy of a tax for 
the purposes specified in this section can not exceed fifty 
per cent of the State tax. This limit extends to current 
expenses. Seaboard Air-Line R. Co. v. Wright, 161 Ga. 136, 
129 S. E- 646. 



SECTION 3 

Purposes for Which County Tax May Be As- 
sessed 

§ 513. (§ 404.) Objects of county tax. 

In General. — This section names nine purposes for which 
taxes may be levied, and when a tax is levied for any one 
of these nine purposes it includes all items named in that 
purpose. Central, etc., R. Co. v. Wright, 35 Ga. App. 144, 
132 S. E. 449. 

Paragraph 1 — Accumulated Indebtedness. — Under the terms 
"due" and "past due" is embraced, necessarily, the "ac- 
cumulated indebtedness" of the county. Indebtedness of 
the county "due" or "past due" may possibly be more 
extensive, in the last analysis of those expressions, than 
"accumulated indebtedness," but "accumulated indebtedness" 
can not be more extensive than the aggregate of the indebt- 
edness which is due and that which is past due. And conse- 
quently a tax for the purpose of paying "accumulated indebt- 
edness" is provided for exclusively under this section. Cen- 
tral, etc., R. Co. v. Wright, 35 Ga. App. 144, 153, 132 S. E- 
449. 

And it follows that a tax for the purpose of paying ac- 
cumulated indebtedness, as allowed under section 507, can 
not be lawfully levied under item 9 of section 513, which 
authorizes a levy "to pay any other lawful charge against 
the county." Central of Ga. R. Co. v. Wright, 35 Ga. App. 
144, 153, 132 S. E- 449. 

Paragraph 2. — See notes to §§ 504, 507. 



SECTION 4 
Assessment and Collection of Taxes 
§ 523. (§ 414.) On failure to pay. 

Execution against Sheriff. — An execution could not be 
legally issued under this section against the sheriff of a 
county on the bond given by the sheriff of a city court of 
the county, although both offices may have been filled by 
the same individual. Martin v. Decatur County, 34 Ga. 
App. 816, 131 S. E- 302. 

§ 526. (§ 417.) County tax may be remitted. 

As to when claims against county are barred, see section 
411 and note. 



ARTICLE 2 
From Other Sources 
§ 530. (§ 421.) Licenses, exhibitions, etc. 

Test for Local Ordinance. — In determining whether the 



[7] 



§ 554 



ROADS, BRIDGES, FERRIES, TURNPIKES, ETC. 



§ 631 



occupation tax imposed by a local ordinance upon peddlers 
is reasonable, the courts should take into consideration the 
occupation taxes imposed by this section. Landham v. La- 
Grange, 163 Ga. 570, 576, 136 S. E. 514. 



ARTICLE 4 

Paupers 

§ 554. (§ 439.) Parents and children bound to 
support each other. 

When Mother Must Support Children. — On the death of a 
father the duty of supporting the children devolves upon 
the mother, where the mother has the ability, and the in- 
fant child is without means, and is unable to earn a main- 
tenance. Thompson v. Georgia R., etc., Co., 163 Ga. 598, 
603, 136 S. E. 895. 



CHAPTER 9A 

County Manager Form of Government 

§ 615 (24). Uniform county manager form of 
government provided; operation of act. — This act 
shall be a general law to provide a uniform county 
commissioner's law for all such counties in this 
State as may require a commission form of county 
government composed of a board of county com- 
missioners of roads and revenues for such county, 
with a county manager as the chief executive of- 
ficer thereof, to be known as the county-manager 
form of government, and shall not prevent any 
county in this State from having a county com- 
missioner's form of county government by local 
Act as now provided by law, provided such local 
Act shall not provide a county-manager form of 
government for such county; and this Act shall 
not go into effect in any county of this State ex- 
cept upon a majority vote of the qualified voters 
of the county, and the operation of this Act in any 
county adopting the same shall be suspended and 
terminated in like manner upon a majority vote 
of the qualified voters of the county; and upon 
the suspension of the operation of this Act in any 
county, the local Act of force in such county shall 
automatically be revived and shall have full force 
and effect in such county, as if its operation had 
not been suspended in such county by the adop- 
tion of this Act by such county; provided, how- 
ever, that this provision shall not affect a county 
in this State having a population of 44,051 by the 
1920 census taken by the United States govern- 
ment, and this Act shall go into force and effect 
in a county of this State having a population of 
44,051 by the 1920 census taken by the United 
States government, and the operation of this Act 
in' such county adopting the same shall be sus- 
pended and terminated only upon an election 
called for the purpose of submitting to the quali- 
fied voters of the county the question whether 
the county-manager form of county government 
shall be established or abolished in such county 
as provided in this Act. If a majority of the quali- 
fied voters of such county, voting in such election, 
shall vote in favor of establishing the county-man- 
ager form of county government in and for such 
county, this Act shall thereupon become of full 
force and effect in such county; and if a majority 
of the qualified voters of such county voting in 
such election shall vote in favor of abolishing the 
county-manager form of county government in 
such county, such form of county government 



shall thereupon be suspended and terminated in 
such county; and upon the suspension of the opera- 
tion of this Act in such county, the local Act of 
force in such county shall automatically be re- 
vived and shall have full force and effect in such 
county as if its operation had not been suspended 
in such county by the adoption of this Act by 
such county; provided, however, that the mem- 
bers of the board of commissioners of such 
count}', in office under the provisions of this Act 
at the time of the suspension of the operation of 
this Act in such county, shall hold office and act 
as the commissioners of such county under the 
provisions of such local Act of such county until 
the expiration or their respective terms of office 
under the provisions of this Act, and until their 
successors shall be elected and qualified under the 
provisions of such Act for such county; provided, 
further, that the operation of this Act in any 
county of this State shall not be suspended and 
terminated by any election held within two full 
years after this Act shall be put into effect in 
such county. If the ordinary of the county shall 
be in charge of the affairs of such county at the 
time of the adoption of this Act in such county, 
the ordinary shall take charge of the affairs of 
such county upon the supervision of the operation 
of this Act in such county, as now provided by 
law for counties having no county commissioners. 
Acts 1922, pp. 83, 93, 94; 1927, p. 211. 

Editor's Note. — The first proviso and all the provisions 
that follow it down to the second proviso, were inserted bv 
the amendment of 1927. 



CHAPTER 12 

Roads, Bridges, Ferries, Turnpikes, Causeways, 
Crossings, etc. 



ARTICLE l 
Public Roads 



SECTION 1 

Classification of Roads and Districts 

§ 629 (1). Post roads deemed public roads; 
maintenance. 

Effect upon Classification of Roads. — This section does 
not prohibit the county authorities from classifying the road 
as a first, second, or third-class road as provided by law. 
Browne v. Benson, 163 Ga. 707, 137 S. E. 626. See section 
631. 

§ 631. (§ 511). Roads may be classified. 

The road commissioners mentioned in this section are pro- 
vided for in section 724. Browne v. Benson, 163 Ga. 707, 137 
S. E. 626. 

Effect of Section 694. — The provision of this section, with 
regard to "concurrence of the majority of the road commis- 
sioners" (such commissioners as are provided in section 
724), is inconsistent with the exclusive power granted to 
county commissioners of roads and revenues in section 694 
et seq. This ruling is based upon the theory that the pro- 
vision for "concurrence of the majority of road commission- 
ers," found in section 631, also applies to the establishment 
of third-class roads. In fact section 633, codified from Ga. 
Laws 1894, p. 100, does not mention road "commissioners." 
The act did authorize classification of third-class roads. 
Buchanan v. James, 130 Ga. 546, at page 549. The act merely 
amends the road laws so as to provide for third-class roads 
and how such roads shall be worked. Section 724 provides 
for district road commissioners, and their duties are speci- 
fied in section 729. All of these duties, where the alterna- 



[8] 



§ 633 



PRIVATE WAYS 



§ 819 



tive road law is operative, are reposed solely in the county 
board of roads and revenues. Browne v. Benson, 163, Ga. 707, 
137 S. E- 626. 

§ 633. (§ 513). Third-class roads. 

See note under section 631. 



SECTION 3 
Roads; How Laid Out, Altered, or Discontinued 

§ 640. (§ 520). Public roads, how laid out or 
altered. 

Method Not Exclusive as to Establishing. — It has several 
times been ruled that sections 640 et seq., is a general law, 
providing a method of establishing roads. It is not the only 
method, but is cumulative, and it has also been held that 
the establishment of a public road without compliance with 
sections 640 et seq. is illegal. Shore v. Banks County, 162 
Ga. 185, 132 S. E- 753, citing numerous cases. 

Does Not Apply to Question of Classification. — This sec- 
tion applies to "any new road, or alternation in an old road," 
but has no application to the question of whether county 
commissioners alone have authority to classify public roads 
into first, second, and third-class as provided in section 631. 
Browne v. /Benson, 163 Ga. 707, 137 S. E- 626. See note to 
sec. 631. 

Adoption of Alternative Road Law. — When the alternative 
road law is adopted by the recommendation of the grand 
jury, road commissioners cease to exist in that county, and 
an exercise of any judicial functions whatever by those per- 
sons who may previously have been road commissioners be- 
comes legally impossible. Varner v. Thompson, 3 Ga. App. 
415, 60 S. E- 216. Browne v. Benson, 163 Ga. 707, 137 S. E. 626. 

State Highway Department Cannot Proceed Hereunder. — 
This section provides a method applicable alone for the con- 
demnation of rights of way for public roads to be laid out by 
the proper county authorities and the state highway depart- 
ment cannot proceed by virtue of this section to condemn 
rights of way for State-aid roads. McCallum v. McCallum, 
162 Ga. 84, 132 S. E. 755. 

Who May Be Appointed Commissioners. — Anderson v. 
Howard, 34 Ga. App. 292, 129 S. E- 567, following Brown v. 
Sams, 119 Ga. 22, 45 S. E. 719, as set out in first paragraph 
tinder this catchline in the Georgia Code of 1926. 

Same — Presumptions of Validity. — In the absence of any- 
thing to the contrary, the presumption would be that the ap- 
pointment was properly made. Anderson v. Howard, 34 
Ga. App. 292, 129 S. E- 567. 

Description of Road. — Where it was objected that the road 
commissioners, or reviewers, did not physically "mark out" 
the road as required by this section, and the evidence was 
that they did not actually stake or mark out the road on 
the ground, or designate its location in any other way ex- 
cept on paper, but they did attach to and make a part of 
their report a map or plat containing all the information and 
data necessary for the definite location of the proposed road, 
this was held a sufficient compliance. Anderson v. Howard, 
34 Ga. App. 292, 297, 129 S. E- 567. 

§ 642. (§ 522). Persons in possession to be 
notified. 

Notice Signed by Majority Sufficient. — It is not necessary 
that the notice served on the objectors should be signed by 
all the commissioners. A majority is sufficient. Anderson v. 
Howard, 34 Ga. App. 292, 129 S. E. 567. 

Clerical Error in Notice. — The words in a notice, "said 
road to be fifty feet in length," clearly appeared to be a 
clerical error, and, the length of the road otherwise appear- 
ing therein, it was proper to overrule a motion to dismiss 
the proceeding, based on the ground that the notice showed 
that the road was to be only fifty feet long, and for that rea- 
son could not be of public utility. Anderson v. Howard, 34 
Ga. App. 292, 129 S. E. 567. 

Failure to Serve All Parties. — Where the citation was pub- 
lished as required by sec. 641, a plaintiff cannot object to the 
proceedings on the ground that certain other persons, through 
whose land the road would pass, had not been served with 
written notice as required by this section. Anderson v. How- 
ard, 34 Ga. App. 292, 296, 129 S. E- 567. 



Meaning of "Vicinage." — The word "vicinage," in this 
section means the neighborhood, or surrounding or adjoin- 
ing district; and its extent does not depend upon an arbi- 
trary rule of distance or topography, but varies according 
to the sparseness or density of settlement in county or city 
districts. Graves v. Colquitt County, 34 Ga. App, 271, 129 
S. E. 166. 



ARTICLE 2 

Alternative Road Law 

§ 6#4. (§ 573). County authorities to lay out 
roads. 

Does Not Include Roads Inside of Cities. — The word "road," 
wherever used in these sections, seems clearly to indicate 
that roads lying outside the municipalities only are in- 
cluded in the term itself. Especially is this true when sec- 
tions 695 and 696 are considered; for the residents of cities 
are not affected by the provisions of section 695, declaring 
who shall be subject to road duty, nor are they subject to the 
payment of the commutation tax provided for in section 
696. Mitchell County v. Cochran, 162 Ga. 810, 817, 134 S. 
E- 768. 

Classification under Alternative Road Law. — The alterna- 
tive road law having been adopted in Muscogee County, the 
commissioners of roads and revenues of that county had the 
exclusive right to classify the roads of that county at any 
time, in their discretion. Browne v. Benson, 163 Ga. 707, 137 
S. E- 626. See in connection with classification of roads sec- 
tion 631 and notes. 



ARTICLE 6 
Commissioners of Public Roads 



SECTION l 

Appointment and Obligation to Serve 

§ 724. (§ 584) j Three commissioners for each 
district, two may act. 

See sec. 631 and notes thereto. 



§ 678. 
redressed. 



SECTION 9 
Damages, How Assessed 
(§ 557). Landowners aggrieved* 



how 



ARTICLE 12 
Private Ways 
§ 808. (§ 662). Not more than fifteen feet wide. 

See note "Prescriptive use Unnecessary" under section 819. 

§ 819. (§ 673). Can not be closed after one 
year without notice. 

Way Need Not Be Established.— This section, properly 
construed, means that notwithstanding a road may not be a 
private way within the meaning of the law, yet if persons 
have used it — -traveled it — for as long as a year as though 
it were such in fact, the owner can not obtruct or close it 
without first giving the prescribed notice. It is not the 
purpose of this section to enable the user of the road to 
hold the owner at bay until the road may become a priv- 
ate way by prescription, but its clear intent is that if the 
owner sits by and for a year or more permits another to 
travel a road over his land as though it were a private way, 
such conduct on his part speaks of a necessity for the way 
to the extent that the law will preserve the status for 30 
days in order that the parties using the road may take steps 
to have it made permanent by condemnation. Barnes v. 
Holcomb, 35 Ga. App. 713, 716, 134 S. E. 628, citing Neal v. 
Neal, 122 Ga. 804, 50 S. E. 929. 

Prescriptive Use Unnecessary. — The provisions of the pres- 
ent section were in the earler codes, and, what is more, the 
article in which they appeared in each of such earlier codes 
was devoted exclusively to the acquisition of private ways 
by express grant and by condemnation. It is thus seen that 
the right definied in this section was not dependent upon 
such use as could ultimately have resulted in prescription. 
These facts regarding the history of this section apply 
equally to the history of section 808. Barnes v. Holcomb, 35 
Ga. App. 713, 719, 134 S. E. 628. 

Necessary Allegations. — An application to prevent closing 
a road until the thirty days notice is given will be suf- 
ficient to show the jurisdiction of the ordinary where it de- 



[9] 



§ 828 



LIMITATION OF POWERS OF CITY AND ITS OFFICERS 



§ 894 



scribes the road with reasonable certainty, and alleges that 
the road has been used by the applicant as a private way 
for as much as a year, and that the owner of the land over 
which it passes has obstructed or closed it without first 
giving the 30-days notice in writing. In such a case it is 
not necessary to make the allegations required in an ap- 
plication for the removal of obstructions from a private 
way claimed by prescription under the provisions of section 
824. Barnes v. Holcomb, 35 Ga. App. 713, 716, 134 S. E. 
628. 



ARTICLE 13 
State Highway Department. Reorganization. 



SECTION l 

Reorganization, Assent to Federal Law and 
Membership of Department 

§ 828 (1). State Highway Department reor- 
ganized. 

As to construction through municipality without consent 
of local authorities, see note to sec. 828(31). 



SECTION 6 
Powers and Duties of Highway Department 
§828 (18). Control of road work, etc. 

Effect of Section upon Rights to Condemn. — The provi- 
sion that no road or portion thereof shall become a part ■ of 
the system of State-aid roads until so designated by the 
State highway board does not prevent that board from 
instituting condemnation proceeding to acquire right-of- 
way. On the contrary, the law authorizes this proceeding. 
Cook v. State Highway Board, 162 Ga. 84, 97, 132 S. E. 902. 

§ 828 (22). Labor, contracts for construction, 
etc.; condemnation of right of way. 

As to liability of county where state condemns right-of- 
way, see note to sec. 828(27). 

As to necessity of designating road as part of system as 
prerequisite to condemnation proceedings, see note to § 
828(18). 

Power of Condemnation Exercised by State. — This law 
prescribes a full and complete State method of laying out, 
constructing, and maintaining State-aid roads. The State 
highway board is given full authority and power to con- 
demn rights of way for these roads. This power was so 
exercised in the case at bar and it can not be said that the 
proceeding was brought for and in behalf of the county 
and not in behalf of the State. Cook v. State Highway 
Board, 162 Ga. 84, 98, 132 S. E. 902. 

§ 828 (27). Rights of way, counties to give. 

Condemnation by State — Liability of County. — The fact 
that the proper county authorities are required to furnish 
rights of way, free to the State highway board, does not 
prevent that board from condemning rights of way for 
State-aid roads whenever the county authorities fail or re- 
fuse to furnish said rights of way. This provision may 
make the counties liable for expenditures incurred by the 
State highway board in acquiring these rights of way; but 
it does not bar this board from proceeding to condemn 
rights of way. Cook v. State Highway Board, 162 Ga. 84, 
97, 132 S. E. 902. 



SECTION 7 

Construction of Roads by County 

§ 828 (31). Reimbursement of counties for ex- 
penditures. 

Construction by State Through Municipality — Liability 
for Damages. — The decision in Lee County v. Smithville, 154 
Ga. 550, 115 S. E- 107, to the effect that the State highway 
department, in conjunction with the county authorities, may 
construct a "State-aid road" through a municipality without 
its consent and even against its will, can have no applica- 
tion so as to preclude a liability against the municipality 
for damage done to private property by a change in a 
grade of one of its streets which the municipality knowingly 

[10 



permitted to be made where such street is not part of the 
highway being constructed or repaired but is entirely dis- 
connected therefrom and is graded merely for the purpose 
of obtaining dirt with which to widen another street or road 
which is occupied as a part of the highway. Cleveland v. 
Kimsey, 34 Ga. App. 480, 130 S. E- 159. 

The municipal authorities in such a case having power 
to prevent such change in the grade of the street may be 
held liable for damages to private property resulting there- 
from where they knowingly permit the work to be done. 
Cleveland v. Kimsey, 34 Ga. App. 480, 130 S. E. 159. 

Power of County to Construct Municipal Roads. — County 
authorities are not authorized to expend the proceeds of 
the sale of bonds issued by the county for the purpose of 
raising money with which to pave and grade the public 
roads in that county, for the pavement or grading or im- 
provement of streets in a municipality located in the 
county; and the court did not err in granting an injunction 
to restrain them from so doing. Mitchell County v. Coch- 
ran, 162 Ga. 810, 134 S. E. 768. 

§ 828 (33). Power to sue and to condemn 
rights of way. 

As to liability for payment, see note to § 828(27). 



CHAPTER 14 

County Police, Election, and Maintenance 

§ 855 (1). Policemen of good character to be 
appointed. 

County Policeman Not an Employee under Compensation 
Act. — See note under this catchline under section 3154(2) 
subdivision (b). 



SEVENTH TITLE 
Municipal Corporations 



ARTICLE l 
Assessors 
§ 862. (§ 717.) Tax assessors for city. 

Effect upon Existing Power. — As stated in the proviso of 
the section, the charter powers conferred upon the mayor 
and aldermen of Savannah as assessors were not taken away 
by the subsequent enactment of this section. Tietjen v. 
Mayor, 161 Ga. 125, 130, 129 S. E. 653. 



ARTICLE 3 

Assessments for Street and Other Improvements 

§ 869. (§ 723). Municipalities may issue exe- 
cutions for paving, etc. 

Similar to a Tax Fi. Fa. — A fi. fa. issued by a city under 
this section is in the nature of a tax fi. fa. and governed 
by the same procedure, and must be taken to be subject 
to the same period of limitation. Lewis v. Moultrie Bank- 
ing Co., 36 Ga. App. 347, 348, 136 S. E. 554. See Brunswick 
v. Gordon Realty Co., 163 Ga. 636, 136 • S. E- 898. 



ARTICLE 3 
Limitation of Powers of City and Its Officers 
§ 894. (§ 745). Obstructions in street. 

Use of Streets Not Absolute. — The use of streets and high- 
ways is not absolute and unrestricted, but is subject to 
reasonable regulation. Scblesinger v. Atlanta, 161 Ga. 148,. 
129 S. E. 861. 

Same — Restriction of Busses. — The use of streets by com- 
mon carriers for the purpose of gain is extraordinary and 
may be conditioned or prohibited as the legislature or mu- 
nicipality deems proper. Hence, if the State or city deter- 
mines that the use of streets by busses should be re- 
stricted or prohibited there is nothing in the Constitution 
of the United States or this State which prohibits such ac- 
tion. Schlesinger v. Atlanta, 161 Ga. 148, 161, 129 S. E- 861, 
citing numerous authorities. 

] 



§ 898 



STREET IMPROVEMENTS IN CERTAIN CITIES 



§ 913(25) 



§' 898. (§ 749). Municipal corporations liable 
for injuries, when. 

General Rule. — Stated in Atlanta v. Robertson, 36 Ga. 
App. 66, 135 S. E- 445, as set out under this catchline in the 
Georgia Code of 1926. 

Proximate Cause. — Irrespective of whether a municipal 
corporation is exercising a "governmental function" in al- 
lowing a part of its sewerage system to become worn and in 
a bad state of repair, where a traveler upon a public street 
in a city is injured in consequence of a dangerous condi- 
tion under the surface of a street, of which the city knew 
or should have known in time to repair it or to give warn- 
ing of its existence before the injury, the city can not escape 
liability upon the ground that such condition of the streets 
was due to its failure to repair its sewerage system. Atlanta 
v. Robertson, 36 Ga. App. 66, 135 S. E- 445. 

§ 899. (§ 750). Municipal property not sub- 
ject to levy. 

Property Cannot Be Encumbered. — A city board of educa- 
tion has no authority to place an incumbrance upon articles 
which it had unconditionally purchased on account several 
months previously, and which it had installed as necessary 
to the operation of the schools. Southern School Supply 
Co. v. Abbeville, 34 Ga. App. 93, 101, 128 S. E. 231, and 
cases cited. 

§ 900. (§ 751). Voting when personally inter- 
ested. 

Effect on Contract. — A contract between the City of At- 
lanta and a construction company, in which a member of 
council is a large stockholder, is null and void, although 
such member of council did not vote for the ordinance au- 
thorizing such contract, and did not use his influence in 
procuring other members of council to approve and author- 
ize the making of such contract, and although such contract 
is fair and free from fraud. Montgomery v. Atlanta, 162 
Ga. 534, 134 S. E- 152. 

Where such an illegal contract has been made, it can- 
not subsequently be ratified by the resignation of the 
interested councilman and the confirmation • of the contract 
by the council. Montgomery v. Atlanta, 162 Ga. 534, 547, 
134 S. E- 152. 



CHAPTER 11 

Repeal or Amendment of Municipal Charters 

§ 913(19). Referendum, when necessary. — No 
local law seeking a repeal of a municipal charter of 
cities of less than fifty thousand inhabitants, or 
an amendment to any municipal charter of cities 
of less than fifty thousand inhabitants, which 
amendment materially changes the form of gov- 
ernment of a municipality or seeks to substitute 
other officers for municipal control other than 
those in control under existing charter, shall be- 
come effective until such repeal or amendment 
shall be voted upon by the qualified voters off the 
municipality to be affected as hereinafter provided. 
Acts 1925, p. 136; 1927, p. 245. 

Editor's Note. — Prior to the amendment of 1927, this sec- 
tion applied to repeal or amendment of charters of cities which 
have a population of less than two hundred thousand. The 
present section is limited to cities with a population of less 
than fifty thousand. 



CHAPTER 12 
Street Improvements in Certain Cities 

§ 913(23). Definitions. — In this Act the term 
"municipality" means any city or town in the 
State of Georgia now or hereafter incorporated, 
having a population of six hundred or more. 

"Governing body" includes mayor and council, 
board of aldermen, board of commissioners, or 
other chief legislative body of a municipality. 

The words "improve" and ''improvement" in- 
clude the grading, regrading, paving, repaving, 

[1 



macadamizing, and remaeadamizing of streets, 
alleys, sidewalks, or other public places or ways, 
and the construction, reconstruction, and alter- 
ing of curbing, gutting, storm-sewers, turnouts, 
water-mains, and water, gas, or sewer connections 
therein. 

The word "streets" includ.e streets, .avenues, 
alleys, sidewalks and other public places or ways. 

The word "pave" shall include storm drainings, 
paving, macadamizing, and grading. 

"Frontage" means that side or limit of the lot 
or parcel of land in question which abuts on the 
improvement. Acts 1927, p. 322. 

§ 913(24). Referendum as to adoption of this 
Act. — The governing body of any municipality 
in the State of Georgia is hereby authorized and 
empowered to hold an election (or elections), at 
such time and under such conditions as may be 
determined by said governing body, for the pur- 
pose of adopting the provisions of this chapter; 
and when such election has been duly held and a 
majority of the qualified electors voting therein 
shall have voted in favor of such adoption, and 
the election managers shall have duly certified 
the results of such election to the governing body, 
and the same shall have been adopted and entered 
on the minutes thereof, then the aforesaid govern- 
ing body of such municipality shall be and is 
hereby authorized and empowered to improve 
any street or streets in such municipality when- 
ever in the judgment of its governing body the 
public welfare or convenience may require such 
improvement, subject only to the conditions and 
limitations herein prescribed. Acts 1927, p. 322. 

§ 913(25). Resolution declaring improvement 
necessary; publication; protest; contract assess- 
ment; etc. — Whenever the said governing body 
shall deem it necessary to improve any street or 
any part thereof either in length or width, within 
the limits of said municipality, and said governing 
body shall iby resolution declare such improve- 
ment necessary to be done, and publish such reso- 
lution once a week for at least three consecutive 
weeks in the newspaper in which the sheriff's ad- 
vertisements of the county in which such munici- 
pality is located are published, and if the owners 
of a majority of the lineal feet of frontage of the 
lands abutting on said improvement shall not in 
fifteen days after the last day of publication of 
such resolution file with the clerk of said city 
their protest in writing against such improvement, 
then said governing body shall have power to 
cause said improvement to be made, and to con- 
tract therefor, and to make assessments and fix 
liens as provided for herein. Any number of 
steets or any part or parts thereof to be so im- 
proved may be included in one resolution, but 
any protest or objection shall be made as to each 
street separately; provided, however, that if the 
owners of a majority of the lineal feet or frontage 
of the land liable to assessment for such improve- 
ment shall petition the governing body for such 
improvement, citing this chapter and designating 
by general description the improvement to be un- 
dertaken and the street or streets or part thereof 
to be improved, it shall thereupon be the duty of 
said governing body to proceed, as hereinafter 
provided, to cause said improvements to be made 

1] 



§ 913(26) 



STREET IMPROVEMENTS IN CERTAIN CITIES 



§ 913(29) 



in accordance with the prayers of said petition 
and their own best judgment, and in such cases 
the resolution hereinbefore mentioned shall not 
be required. The petition shall be lodged with the 
clerk of the municipality, who shall investigate 
the sufficiency thereof, submit the petition to the 
governing 'body, and certify the result of his in- 
vestigation. Acts 1927, p. 323. 

§ 913 (26). Assessment on basis of frontage; 
Intersecting streets, — Each lot or parcel of land 
abutting upon said improvement shall be charged 
on a basis of lineal-foot frontage at an equal 
rate per foot of such frontage with its just pro 
rata of the entire cost of said improvement, lesis 
any amounts paid by street or steam railways or 
others; provided, however, that the cost of the 
sidewalks, curbs, and gutters shall be charged 
entirely to the lots or parcels of land abutting on 
that side of the street upon w'hich the same are 
constructed. The frontage of intersecting streets 
shall be assessed as real estate abutting upon 
the improvement, and the municipality, for all 
purposes of this chapter, shall be deemed to the 
owner thereof, and the mayor or chairman of the 
board of commissioners shall have authority to 
sign the petition or file objections provided for 
herein; and the governing body of the municipal- 
ity shall pay from the city treasury, as other cur- 
rent bills are paid, its just pro rata of the entire 
cost of said improvement, unless the owners of a 
majority of the aforesaid frontage in the petition 
hereinbefore provided for shall agree to pay the 
entire cost of said improvement, or unless in the 
resolution hereinbefore provided for it shall be 
stated that the entire cost of the improvement is 
to be paid by the abutting property owners. Acts 
1927, p. 324. 

§ 913(27). Railroads.— Any railroad or street 
railway having tracks located in a street at the 
time of the proposed improvement as provided 
herein shall be required by the governing body 
to pave the width of its tracks and two feet on 
each side thereof, and, except as hereinafter pro- 
vided, with the same material and in the same 
manner as the rest of the street is to be paved, and 
such work shall be performed under the supervi- 
sion and subject to the approval of the city's en- 
gineer, and if such railway shall not, within a pe- 
riod of thirty days after receipt by such railway of 
the notice to do such work, agree in writing to 
•comply with such order, or if the work is not 
completed to the satisfaction of the city's engineer 
within such time as may be described by the gov- 
erning body, said governing body may have such 
work done and charge the cost and expense there- 
of to such railway company located in the munici- 
pality and said lien shall have the same rank and 
priority and shall be enforced in the same manner 
as the liens provide for in section 913(31). The 
governing body may, however, require such pav- 
ing to be of a different material and manner of 
construction, when, in its judgment such is ren- 
dered necessary by the railway uses of the street. 
Acts 1927, p. 324. 

§ 913(28). Powers as to ordinances. — When- 
ever the petition provided for in section 913(25) 
is presented, or when the said governing 
body shall have determined to improve any street, 

['1 



and shall have passed the resolution provided for 
in said section 913(25), the said governing 
body shall then have the power to enact all 
ordinances and to establish all such rules and reg- 
ulations as may be necessary to require the 
owners of all the property abutting on the im- 
provement and of any railway in said street to 
pay the cost of such improvement, and to cause 
to be put in and constructed all water, gas, or 
sewer-pipe connections to connect with any exist- 
ing water, gas, or sewer-pipes in and underneath 
the streets where such improvement is to be 
made, and all cost and expense of making such 
connections shall be taxed solely against such 
property, but shall be included and made a part 
of the general assessment to cover the cost of 
such improvement. Acts 1927, p. 325. 

§ 813(29). Resolution as to kind and extent of 
improvement; contracts; bonds; etc. — After the ex- 
piration of the time for objection or protest on the 
part of the property owners, if no sufficient pro- 
test is filed, or on receipt of a petition for such im- 
provement signed by the owners of a majority of 
the frontage of the land to be assessed, if such pe- 
tition be found to be in proper form and properly 
executed, the governing bod}' shall adopt a resolu- 
tion reciting that no protest has been filed, or the 
filing of such petition, as the case may be, and ex- 
pressing the determination of said governing body 
to proceed with the said improvement, stating the 
kind of improvement and defining the extent and 
character of the same, and other such matters as 
may be necessary to instruct the engineer em- 
ployed by said municipality in the performance of 
his duties in preparing for such improvement the 
necessary plans, plats, profiles, specifications, and 
estimates. Said resolution shall set forth any and 
all isuch reasonable terms and conditions as said 
governing body shall deem proper to impose with 
reference to the letting of the contract and the 
provisions thereof; and said governing body shall 
by said resolution provide that the contractor shall 
execute to the city a good and sufficient bond as 
provided in the Act entitled "Contractors of Pub- 
lic Work Bonded," approved August 19, 1916, and 
may require a bond in an amount to be stated in 
such resolution for the maintenance of good con- 
dition of such improvements for a period of not 
less than five (5) years froni the time of its com- 
pletion, or both, in the discretion of said govern- 
ing body. Said resolution shall also direct the 
clerk of said municipality to advertise for sealed 
proposals for furnishing the materials and per- 
forming the work necessary in making such im- 
provements. The notice of such proposals shall 
be published in at least six consecutive issues ot 
a daily paper, or at least two of a weekly paper, 
having a general circulation in said municipality, 
and shall state the street or streets to be improved, 
the kinds of improvements proposd, what, if any, 
bond or bonds will be required to be executed by 
the contractor aforesaid, and shall state the time 
when and the place where such sealed proposals 
shall be filed and when and where the same will 
be considered by said governing body. At the 
time and place specified in such notice the govern- 
ing body shall examine all bids received, and with- 
out unnecessary delay award the contract to the 
lowest and best bidder, who will perform the work 



§ 913(30) 



STREET IMPROVEMENTS IN CERTAIN CITIES 



§ 913(32) 



and furnish the materials which may be selected 
and perform all the conditions imposed by said 
governing" body as prescribed in such resolutions 
and notice for proposals, and the said govern- 
ing body shall have the night to reject any and all 
bids and readvertise for other ibids when the bids 
submitted are not, in its judgment, satisfactory. 
Acts 1927, p. 326. 

§ 913(30). Appraisers to apportion cost to abut- 
ting land. — After the said contract is let and the 
cost for such improvement, which shall include 
all other expenses incurred by the city incident 
to said improvement in addition to the contract 
price for the work and materials, is ascertained, 
the said governing body shall by resolution ap- 
point a board of appraisers consisting of three 
members to appraise and apportion the cost and 
expense of the same to the several tracts of land 
abutting on said improvement as hereinbefore pro- 
vided. Within thirty days from the date of the 
resolution appointing said board, it shall file with 
the clerk of the municipality a written, report of 
the appraisal and the assessment and cost upon 
the several lots and tracts of land abutting on said 
street, or upon the property of any street or steam 
railwa}^ whose tracks are located in such street 
where such railway has failed or refused to do 
the paving provided herein when and as required 
iby the governing body. When said report shall 
have been returned and filed, the said governing 
body shall appoint a time for the holding of a ses- 
sion, or shall designate a regular meeting of their 
body for the hearing of any complaints or objec- 
tions that may be made concerning the said ap- 
praisement, apportionment, and assessment by 
any person interested, and notice of such session 
for the said hearing shall be published by the 
clerk of the governing ibody once a week for two 
weeks in a newspaper having a general circula- 
tion in said municipality, and said notice shall 
provide for an inspection of such return by any 
property owner or other party interested in such 
return. The time fixed for said hearing shall not 
be less than five nor more than ten days from the 
date of the last publication. The said governing 
body at said session shall have power, and it shall 
be its duty, to review and correct said appraise- 
ment, apportionment, and assessment, and to' hear 
objections to the same, and to confirm the sarne 
either as made by said board or as corrected by 
said governing body. The said governing body 
shall by ordinance fix the assessments in accord- 
ance with said appraisement and apportionment, 
as so confirmed, against the several tracts of land 
liable therefor; provided, however, that the rate 
of interest to be taxed shall not exceed one per 
cent per annum over and above the rate of in- 
terest stipulated in the 'bonds herein provided for. 
Assessment in conformity to said appraisement 
and apportionment as confirmed 'by said munici- 
pality shall be payable to the treasurer of such 
municipality in cash, and, if paid within thirty 
days from the date of the passage of said ordi- 
nance, without interest; provided however, that in 
the event the owner of the land or of any street 
railway so assessed shall, within thirty days from 
tne passage of the ordinance making the assess- 
ment final, file with the clerk of the said munici- 
pality his or its written request asking that the 



assessments be payable in installments in accord- 
ance with the previsions hereof, the same shall 
thereupon be and become payable in ten equal an- 
nual installments and shall bear interest at the 
rate of not exceeding seven per cent per annum 
until paid, and each installment together with the 
interest on the entire amount remaining unpaid 
shall be payable each year at such time and place 
as shall be provided by resolution of the govern- 
ing body. Acts 1927, p. 327. 

§ 913(31). Lien of assessment;, date of lien. — 

Such special assessment and each installment 
thereof, and the interest thereon and the expense 
of collection, are hereby declared to be a lien 
against the lots and tracts of land so assessed 
from the date of the ordinance levying the same, 
coequal with the lien of other taxes and prior to 
and superior to all other liens against such lots or 
tracts, and such lien shall continue until such as- 
sessment and interest thereon shall be fully paid, 
and shall be enforced in the same manner as are 
liens for city taxes. Acts 1927, p. 328. 

§ 913(32). Bonds. — The said governing body,, 
after the expiration of thirty days from the pas- 
sage of said ordinance confirming and levying 
said assessment, shall by resolution provide for 
the issuance of bonds in the aggregate amount of 
such assessments remaining unpaid, bearing date 
not more than thirty days after the passage of the 
ordinance fixing the said assessment and of such 
denomination as the said governing body shalL 
determine, which bond or bonds, unless authority 
is hereafter granted and exercised for making the 
same a direct obligation of the municipality, shall 
in no event become a liability of the municipality 
or of the governing body of the municipality is- 
suing same. One tenth in amount of any such 
series of bonds with interest upon the whole 
series to date, shall be payable on such day and 
at such place as may be determined by the govern- 
ing body, and one tenth thereof with the yearly 
interest upon the whole amount remaining un- 
paid shall be payable on the same day in each 
succeeding year until all shall be paid. Such 
bonds shall bear interest at a rate not exceeding 
six per cent per annum from their date until 
maturity, payable annually, and shall be desig- 
nated as "street-improvement bonds," and shall 
on the face thereof recite the street or streets, part 
of street or streets, or other public places for the 
improvement of which they have issued, and, 
unless authority is hereafter granted and ex- 
ercised for making the same a direct obliga- 
tion of the municipality, that they are payable 
solely from assessments which have been fixed 
upon the lots or tracts of land benefited by said 
improvement under authority of this chapter. Said 
bonds shall be signed by the mayor or chairman 
of the board of commissioners, and attested by 
the clerk of the governing body, and shall have 
the impression of the corporate seal of such mu- 
nicipality thereon, and shall have interest coupons 
attached, and all bonds issued by authority of this 
chapter shall be payable at such place either with- 
in or without the State of Georgia as shall be des- 
ignated by said governing body. Said bonds shall 
be sold by said governing body at not less than 
par, and the proceeds thereof applied to the pay- 



[13] 



§ 913(33) 



STREET IMPROVEMENTS IN CERTAIN CITIES 



§ 913(36) 



me nt of the contract price and other expenses in- 
curred pursuant to the provisions of this chapter, 
or such bonds in the amount that shall be neces- 
sary for that purpose may be turned over and 
delivered to the contractor at par value in pay- 
ment of the amount due him on his contract, 
and the portion thereof which shall be necessary 
to pay other expenses incident to and incurred 
in providing for said improvements shall be sold 
or otherwise disposed of as the said governing 
body shall direct. Any proceeds from the sale 
of said bonds remaining in the hands of the treas- 
urer after the payment hereinbefore provided for 
shall go into the treasury of the municipality as 
compensation for the services to be rendered by 
it as contemplated herein. Acts 1927, p. 329. 

§ 913 (33). Treasurer's duty as to collection; 
sales to pay assessment; affidavit of illegality. — 
The assessment provided for and levied under the 
provisions of this chapter shall ibe payable as the 
several installments become due, together with 
the interest thereon, to the treasurer of the mu- 
nicipality, who shall keep an accurate account 
of all such collections by him made, and such 
collections shall be kept in a special fund to t>e 
used and applied for the payment of such bonds 
and the interest thereon and expenses incurred 
incident thereto, and for no other purpose, until 
all said bonds are paid in full; and said treasurer 
shall give bond in amount to be fixed by the 
governing body, conditioned upon the faithful 
performance by him of the duties imposed herein. 
It shall be the duty of said treasurer, not less than 
thirty days and not more than fifty days before 
the maturity of any installment of such assess- 
ments, to publish at least one time, in a newspaper 
having a general circulation in said municipality 
a notice advising the owner of the property af- 
fected by such assessment of the date when such 
installment and interest will be due, and desig- 
nating the street or streets or other public places 
for the improvement of which such assessments 
have been levied, and that, unless the same shall 
be promptly paid, proceedings will be taken to 
collect said installment and interest, or in lieu 
thereof to mail such notice within the time limits 
aforesaid to the owners of record of the property 
affected, at their last known address. And it shall 
be 'the duty of said treasurer, promptly within 
fifteen days after the date of the -maturity of any 
such installment or assessment or interest, to is- 
sue an execution against the lot or tract of land 
assessed for such improvement, or against the 
party or person owning the same for the amount 
of such assessment or interest, and shall turn 
over the same to the marshal or chief of police 
of the municipality or his deputy, who shall levy 
the same upon the abutting real estate liable 
for such assessment and previously assessed for 
such improvements, and after advertisement and 
other proceedings as in case of sales for city 
taxes the same shall be sold at public outcry to 
the highest bidder, and such sales shall vest an 
absolute title in the purchaser, subject to the 
lien of the remaining unpaid installments with 
interest, and also subject to the right of redemp- 
tion as provided in section S80, 1169, 1170, 1171, 
and 1172 of the Code of Georgia; provided that 
the defendant shall have the right to file an affi- 



davit denying that the whole or any part of the 
amount for which said execution issued is due, 
and stating what amount he admits to be due, 
which amount so admitted to be due shall be paid 
and collected 'before the affidavit is received, and 
the affidavit received for the balance. All affi- 
davits (and the foregoing and following provi- 
sions shall apply to the railroads or street rail- 
ways against whom execution shall foe issued for 
the cost and expense of paving) shall set out in 
detail the reasons why the affidavit claims the 
amount is not due, and, when received by the 
city marshal or chief of police, shall be returned 
to the superior court of the county wherein, the 
municipality is located, and there be tried and 
the issue determined as in cases of illegality, sub- 
ject to all the pains and penalties provided for 
in other cases of illegality for delay under the 
Code of Georgia. The failure of said treasurer or 
clerk to publish or mail said notice of maturity 
of any installment of said assessment and interest 
shall in no wise effect the validity of the assess- 
ment and interest and the execution issued there- 
for. Acts 1927, p. 330. 

§ 913(34). Suit to enjoin assessment, etc.; time 
limit. — No suk shall be sustained to set aside any 
such assessment, or to enjoin the said governing 
body from making or fixing or collecting the same 
or issuing or levying executions therefor or is- 
suing such bonds or providing for their payment 
as herein authorized, or contesting the validity 
thereof on any grounds or for any reason other 
than the failure of the governing body to adopt 
and publish the preliminary resolution provided 
for in section 913(25) in cases requiring such 
resolution and its publication, or to give no- 
tice of the hearing of the return of the ap- 
praisers as herein provided for, unless such suit 
shall 'be commenced within . thirty days after the 
passage of the ordinance making such assess- 
ment final; provided, that in the event any special 
assessment shall be found to be invalid or insuf- 
ficient in whole or in part for any reason whatso- 
ever, the said governing body may at any time, 
in the manner provided for the -making of an 
original assessment, proceed to cause a new as- 
sessment to be made and fixed, which shall have 
like force and effect as an original assessment. 
Acts 1927, p. 3312. 

§ 913(35) Assessment where county is land 
owner. — Whenever the abutting-land owners of 
any street of said municipality petition the gov- 
erning body as herein set out, or said governing 
body pass the resolution provided for in section 
913(25) for the improvement of any street 
where the county is owner of property on 
said street, and the governing body of such 
county has assented to the proposed improvement 
and has provided funds to pay in cash its propor- 
tionate part of the cost of said improvement, the 
frontage so owned is to be counted as if owned 
by an individual, for all the purposes of this chapter 
and the chairman of the board of commissioners 
of such county is authorized to sign the aforesaid 
petition or file objections in behalf of the county. 
Acts 1927, p. 332. 

§ 913 (36) Special laws not repealed. — This 
chapter shall not be construed to repeal any special 



[14] 



§ 913(37) 



PUBLIC REVENUE 



§ 993(4) 



or local law, or affect any proceedings under such 
for the making of improvements hereby author- 
ized or for raising the funds therefor, but shall be 
deemed to be additional and independent legisla- 
tion for such purposes and to provide an alterna- 
tive method of procedure for such purposes, and 
to be a complete Act not subject to any limita- 
tions or restrictions contained in any other publ ; c 
or private law or laws except as herein otherwise 
provided. Act 1927, p. 33i2. 

§ 913(37) Payment of part by municipality. — 

Where the municipality desires to pay any por- 
tion of the cost of the improvements contemplated 
herein, in addition to the amounts hereinbefore 
provided for, the (balance may be assessed against 
the abutting property or the owners thereof, or 
the owners of any street or steam railway there- 
in, as hereinbefore provided for. Acts 1927, p. 333. 



§ 913(38) Proceeding to validate lien. — Any 

time within sixty days after the assessments are 
finally determined and fixed as hereinbefore pro- 
vided for, it shall be lawful for the municipality 
to file a petition in the superior court of the 
county in which the said municipality is situated, 
wherein shall be alleged the fact of the passage 
and approval of the ordinance, and a copy there- 
of, the street or part of a street affected thereby, 
the character of paving or other improvement in- 
tended, and the approximate estimate of the cost. 
Said petition shall allege that the ordinance is 
authorized by law, and that it will create a lien on 
all real property abutting on such street or part 
of a street, for the payment by the owner of each 
lot or parcel of land so abutting, of the pro rata 
share of expense assessed to each said lot or par- 
cel of land, as well as on any street or other rail- 
road therein, if any such there be, and shall pray 
for a judgment iby the court declaring such ordi- 
nance valid, legal, and binding, and that the liens 
be set up as alleged. It shall not be necessary in 
such petition to allege the names of the owners 
of the abutting property of railroads to be af- 
fected, but shall be sufficient to describe the street 
or portion thereof to be improved, and to indi- 
cate, as hereinbefore provided, that the property 
on said street is to ibe charged with the expense.- 
*At or ibefore the filing of such petition, the same 
shall 'be presented to the judge of said court, w'ho 
shall thereupon pass an order calling upon all 
persons owning or interested in the real estate 
abutting on said street, or on the designated part 
thereof, to show cause, at a time and place to be 
in said order named, why the prayer of the peti- 
tion should not be granted and the ordinance 
and assessments declared valid and the liens be 
fixed as legal and (binding, which time shall not 
be less than thirty nor more than sixty days later 
and either in term time or vacation, and either in 
open court or at chambers. It shall thereupon ibe 
the duty of the clerk to publish once a week 
for four weeks in the official organ of the 
county, a statement of the case and a copy of said 
order. At the time and place named, or at such 
other time and; place as the hearing may he ad- 
journed to, any person interested shall be heard 
to show cause in writing, which writing shall be 
filed with the clerk, why the prayer should not be 
granted. The court shall hear all questions 

[15] 



of law or fact, and all competent evidence may 
be offered as in other cases; and the court shall 
thereupon pass an appropriate order finding and 
adjudging that said ordinance is lawful and valid 
and said liens legal and binding, or otherwise, as 
the law and facts may warrant. The municipality 
or any person appearing, and who may be dis- 
satisfied with said judgment, may within ten days 
file a bill of exceptions and carry the matter up 
to the Supreme Court or the Court of Appeals, 
as the case may be, for review as in cases of in- 
terlocutory injunction. If the final judgment of 
the superior court shall be in favor of the validity 
of the ordinance and of the liens claimed, the 
same shall forever be conclusive, and said mat- 
ters so determined shall never be thereafter drawn 
in question in any court. Bonds issued under the 
provisions of this chapter after such judgment 
shall have written or stamped thereon the words 
"Validated and Confirmed by judgment of the 
Superior Court," specifying also the date when 
such judgment was rendered and the court where- 
in it was rendered, which shall be signed by the 
clerk of the said superior court, and said entry 
shall be original prima facie evidence of the fact 
of such judgment, and receivable as such in any 
court of this State. In any case in which similar 
bonds have been heretofore issued by any munic- 
ipality under the authority of particular local 
Acts, it shall be lawful to validate the same and 
fix the assessments by final judgment of the su- 
perior court under like proceedings and with like 
effect; provided, however, that before the munic- 
ipality shall institute such proceedings in such 
cases, the holder or holders of such bonds or 
any part thereof shall give to the municipality 
good and sufficient bond and security to indem- 
nify and hold harmless the municipality against 
any court costs or other expenses incident to 
such validating proceedings, the sufficiency of such 
bond and the security to be approved by the 
chief executive officer of the municipality. Acts 
1927, p. 333. 



EIGHTH TITLE 
Public Revenue 



CHAPTER 1 
Taxation 



ARTICLE 1 

Ad Valorem, and Occupation Taxes 

§ 993 (4). Poll tax; exemptions; registered 
female voters. 

Registration as Prerequisite to Tax. — A female more than 
21 years of age, by the provisions of the act of 1923, prop- 
erly construed, is not required to pay poll-tax except for 
those years in which she may be registered as a voter. Haw- 
thorne v. Turkey Creek School Dist., 162 Ga. 462, 134 S. E. 
103. 

Poll Tax Prior to 1922.— Females in this State, who were 
otherwise qualified to vote, might have voted at any time 
between August 26, 1920, and December 20, 1922, without 
paying poll-tax prior to such voting. Davis v. Warde, 155 
Ga. 748, 118 S. E. 378. Thus there was no poll-tax required 
of females prior to December of 1922. Hawthorne v. Turkey 
Creek School Dist., 162 Ga. 462, 468, 134 S. E. 103. 



§ 993(24) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(173) 



§ 893 (24). Cars operated for hire. 

Effect upon Municipal Taxation. — The imposition of a tax 
under this act and its payment by jitney owners does not 
confer upon them the right to operate their jitneys on the 
streets of a city so that the latter can not prohibit their 
operation. Schlesinger v. Atlanta, 161 Ga. 148, 163, 129 S. 
E. 861. 

§ 993 (49). Coal, coke, wood and lumber. 

Constitutionality. — This section as amended in 1924, is not 
unconstitutional and void because it violates the commerce 
clause of the Federal Constitution, or the uniform-tax pro- 
vision of the State Constitution. Georgia-Carolina Lumber 
Co. v. Wright, 161 Ga. 281, 131 S. E- 173. 

§ 993 (54). Foreign corporations. 

Effect of Failure to Pay upon Contract. — The failure on 
the part of the corporation to register with the comptroller- 
general and pay the tax required by this act, does not 
render the contracts of the corporation void and unenforce- 
able, since the purpose of the general tax act, as denned by 
its caption, is merely to raise revenue, and it can not be 
taken to impliedly nullify contracts made in the absence of 
compliance with its provisions. Toole v. Wiregrass De- 
velopment Co., 142 Ga. 57, 82 S. E. 514; Morris v. Moore, 
143 Ga. 512, 85 S. E. 635; McLamb v. Phillips, 34 Ga. App. 
210, 129 S. E. 570; Alston v. New York Contract Purchase 
Corp., 36 Ga. App. 777, 138 S. E. 270. 

§ 993 (65). Travelling horse traders or gyp- 
sies. 

Taxation under This Section and Section 993(80). — The 

plaintiff, a Georgia corporation, having a fixed and perma- 
nent place of business, and being a bona fide resident of 
the State, and having paid the occupation tax imposed by 
section 993(80), to the tax-collector (who issued his certifi- 
cate showing the payment, etc.) was not subject to the tax 
imposed under this section. Fulton Trading Co. v. Baggett, 
161 Ga. 669, 131 S. E- 358. 

§ 993 (69). Travelling, etc., agents of assess- 
ment, etc., companies. 

Industrial Life Insurance Agents. — Because of section 
2507, this section is not applicable to industrial life in- 
surance agents. Hoover v. Pate, 162 Ga. 206, 132 S. E. 763. 

§ 993 (80). Live stock dealers. 

As to payment under both this section and section 993(65), 
see note to section 993(65). 

§ 993 (149). Cigarette and cigar dealers; "whole- 
sale" and "retail" dealer defined. 

Number of Sales to Constitute One Dealer. — Where the 
evidence shows only one sale and no attempt at others or 
intent to engage in retail trade, it is not sufficient to clas- 
sify the seller as a dealer under the definition of this sec- 
tion. Lichtenstein v. State, 34 Ga. App. 138, 128 S. E- 704. 

§ 993 (169). Specific and occupation taxes. — 

In addition to the ad valorem tax on real estate 
and personal property, as required by the Con- 
stitution and now provided for by Law, the fol- 
lowing specific and occupation taxes shall be 
levied and collected each year after the passage of 
this Act, beginning in 1928. In all cases in this 
Act where population controls the amounts of 
tax or license fee to be paid, the last census re- 
port of the Federal government shall govern. 
Acts 1927, p. 57. 

§ 993 (170). Poll tax; exemptions, — Upon each 
and every inhabitant of the State between the 
ages of twenty-one and sixty years, on the day 
fixed for the return of property for taxation a 
poll tax of ($1.00) one dollar, which shall be for 
educational purposes in instructing children in the 
elementary branches of an English education only. 
Provided, this shall not be demanded of blind 
persons, nor crippled, maimed, or disabled Con- 
federate veterans relieved of such taxes under 
and by authority of section 766, volume 1, of the 
Code of 1895, nor shall this tax be required or 



demanded of female inhabitants of the state who 
do not register for voting. 

§ 993 (171). Ad valorem tax for sinking fund 
for retirement of State Bonds. — The governor, by 
and with the assistance of the Comptroller-Gen- 
eral, is authorized and empowered annually to 
levy and assess a tax on the ad valorem value 
of the taxable property of this State, such rate as 
may be sufficient to raise a net amount of $100,- 
000.00 as a sinking-fund to pay off and retire 
the valid outstanding bonds of the State as they 
fall due, as required by article 7, section 14, par- 
agraph 1, of the Constitution. The tax ahove 
authorized shall be specially levied and collected, 
and separate accounts of the same shall be kept 
by the Treasurer, and the money arising there- 
from shall be applied to paying off the valid bonds 
of the State as they mature. The said amount 
so received each year shall be applied to paying 
off and retiring the valid bonds of the State, 
maturing in- their order continuously. All bonds 
retired under the provisions of this Act shall be 
cancelled and stamped with the words "sinking 
funds," by the Treasurer, and filed in his office. 
In addition to the foregoing levy, the Governor, 
by and' with the assistance of the Comptroller- 
General, shall also levy and assess such addi- 
tional rate of tax on the taxable property of this 
'State as may be necessary to meet the appropria- 
tions of the General Assembly of Georgia for each 
succeeding year. The aggregate ad valorem tax 
levy in any one year not to exceed the tax-rate 
limit fixed b}^ the Constitution of this State. 

§ 803 (172). Professional tax. — Upon each and 
every practitioner of law, medicine, osteopathy, 
chiropractic, chiropodist, dentistry, and upon each 
and every veterinary surgeon, optician, optome- 
trist, masseur, public accountant, or embalmer, 
and upon every civil, mechanical, hydraulic, or 
electrical engineer, or architect, charging for their 
services as such, $15.00, and the validity of their 
licenses is made contingent upon the payment of 
the tax herein provided. And no municipal cor- 
poration or county authority shall levy or 
collect an additional tax on the professions, busi- 
nesses, or occupations enumerated above, which 
shall be returned to the tax-receiver of the county* 
of his residence by any person engaged therein 
on the first day of January, and entered by the 
receiver oh the digest of the county. 

§ 993(173). Presidents and officials of corpora- 
tions, — Upon the president of each express, tele- 
graph, telephone, railroad, street-railroad, steam- 
boat or navigation company, electric light, gas 
company, water company, sleeping-car company, 
palace car-company, building and loan association, 
and investment and loan company, doing business 
in this State, $25.00. Provided, said tax shall not 
apply to local building and loan associations fos- 
tered as a civic undertaking and not conducted 
for financial gain or profit. In case the president 
of any of the companies enumerated in the pre- 
ceding paragraph does not reside in this State, 
then in each case the general agent, superintend- 
ent, or other person or official in charge of the 
business of such companies, residing in this State, 
shall be required to pay the tax of $25.00 hereby 
imposed; and no municipal corporation, or county 



[16] 



§ 993(174) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(184) 



authorities shall levy or collect an additional tax 
on the officials enumerated above, either as a li- 
cense, tax, or fee. The president or other officials 
herein named, of the companies enumerated 
above are required to make a return as such to 
the tax-receiver of the county of his residence as 
of January 1st, which return shall be entered on 
the digest by said receiver. 

§ 993(174). Advertising agents. — Upon each 
person, firm, or corporation conducting business 
of an advertising agency using other means than 
billboards, $50.00; upon each person, firm, or cor- 
poration conducting the business of advertising 
by signs painted, pasted, or printed on billboards 
or other places where space is leased, rented, or 
sold, in each county where located, one dollar 
($1.00) for each location, and a location is denned 
to be 75 lineal feet or fractional part thereof; and 
provided further, that before painting or posting 
such locations or fractional part thereof, it shall 
be the duty of the person or persons so advertis- 
ing to register with the ordinary and tax-col- 
lector of said county as required by law, and in 
case of any increase of advertising said ordinary 
shall in each instance be notified as to the number 
of locations. 

§ 993 (175). Agencies, collecting, commercial, 
and mercantile. — Upon each person, firm, or cor- 
poration engaged in business as a collecting, 
commercial, mercantile, or any other agency of 
like character, $200.00 in every county in the 
State where they have an office or branch office. 

§ 993(176). Detective agenciesi — Upon each 
person, firm, or corporation operating a detec- 
tive agency or doing detective work for hire or 
compensation, for each office established in this 
'State, in or near cities or towns of 25,000 or more 
inhabitants, $200.00; in or near cities or towns 
from 10,000 to 25,000 inhabitants, $50.00; and in 
or near cities or towns of less than 10,000 inhabit- 
ant, $25.00. 

§ 993 (177). Amusement parks. — Upon each 
person, firm, or corporation running, leasing, or 
operating an amusement park, other than base- 
ball, football, or bicycle parks, hereinafter men- 
tioned, where two or more amusement devices, 
resorts, or attractions are .operated, and an admis- 
sion fee is charged for any one or more of the ex- 
hibits, resorts, or attractions, $250.00. Provided, 
this paragraph shall not be construed to exempt 
or relieve any individual device, resort, amuse- 
ment, or attraction located in said park from pay- 
ing any specific or license tax herein imposed. 

§ 993 (178). Athletic clubs. — Upon every ath- 
letic club, and upon every association or person 
giving boxing or sparring or wrestling exhibitions 
where an admission of 50 cents to $1.00 is charged 
$50.00 for each exhibition; where admission 
charged is $1.00 to $1.50, $100.00; and where the 
admission charged is $1.50 and over, $200.00 for 
each exhibition. 

§ 993 (179). Auctioneers. — Upon each and ev- 
ery auctioneer selling by auction in this State 
jewelry, junk, furniture and household goods, live 
stock farm implements and produce, and real 
estate, $100.00 in each county in which he con- 
ducts said business. Provided that this section 

[1 



shall not apply to sheriffs and the parties acting 
as auctioneers for executors, administrators, guard- 
ians, and commissioners conducting sales by vir- 
tue of the order of any court of this State. Pro- 
vided that the foregoing provision shall not apply 
to auctioneers of tobacco or other farm prod- 
ucts, nor to attorneys at law conducting sales un- 
der power of sale, or other legal sale for their 
clients. 

§ 983 (180). Automobile and truck dealers. — 

Upon every agent of, upon every dealer in, and 
upon every person soliciting orders for retail sale 
of automobiles or trucks, not including wholesale 
dealers or distributors soliciting or canvassing for 
local dealers, the sum set out below, viz. In each 
county with a population of less than 20,000, 
$25.00; in each county with a population of be- 
tween 20,000 and 30,000, $55.00; in each county 
with a population of between 30,000 and 50,000, 
$85.00; in each county with a population between 
50,000 and 75,000, $110.00; in each county with a 
population between 75,000 and 100,000, $165.00; 
in each county with a population (between 100,000 
and 150,000, $220.00; in each county with a popula- 
tion exceeding 150,000, $275.00. Provided, how- 
ever, that nothing in this Act shall conflict with 
the provisions fixing a liicense upon exclusive 
dealers in used cars. Such dealer, agent, or so- 
licitor selling or offering for sale automobiles or 
trucks at retail shall be required to pay one license 
fee only in each county, so as to provide that all 
persons soliciting orders, or selling auto-mobiles 
or trucks at retail, shall pay a license to become 
a dealer or agent, and such license shall entitle 
such dealer to sell any makes of new or second- 
hand automobiles or trucks; and shall entitle said 
dealers to operate, in connection with said busi- 
ness, a service-station in said county in which 
said license is paid; any dealer having paid such 
tax to be allowed any number of employees for 
the purpose of selling cars within the county 
wherein such tax has been paid. The service- 
station under this paragraph includes work done 
only on the makes of cars sold by the dealer un- 
der this tax. 

§ 993 (181). Dealers in used cars. — Upon every 
person, firm, or corporation dealing exclusively 
in used automobiles or trucks, or second-hand 
automobiles or trucks, the following sums, viz: 
In each county with a population of less than 
20,000, $25.00; in each county with a population 
of over 20,000 and not over 50,000, $50.00; in each 
county with a population exceeding 50,000, $100.00. 

§ 993 (182). Automobile tires or accessories; 
(Wholesale). — Upon every wholesale dealer in au- 
tomobile tires or automobile accessories of 
any kind whatsoever, the sum of $100.00 for each 
place of business. 

§ 993 (183). Automobile tires or accessories (Re- 
tail).— Upon every retail dealer in automobile 
tires or automobile accessories of any kind what- 
soever, the sum of $10.00 for each place of busi- 
ness. 

§ 993 (184). Automobile assembling; plants. — 

Upon every agent or representative of any foreign 
or non-resident corporation, said agent or repre- 
sentative having an office in this State, operating. 



§ 993(185) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(202) 



an automobile assembling-plant, $300.00 in each 
county. 

§ 993 (185). Automobile truck assembling- 
plants.— Upon each person, firm, or corporation 
operating an automobile truck assembling-plant, 
$300.00 in each county. 

§ 993 (186). Automobile garages. — Upon each 
person, firm, or corporation carrying on the busi- 
ness of operating garages, either for storage or 
repairing automobiles, in cities of more than 
85,000 inhabitants, $75.00; in cities between 20,000 
and 35,000 inhabitants, $50.00; in cities between 
10,000 and 20,000 inhabitants, $25.00; in, cities 
and towns of 1,000 to 10,000 inhabitants, $15.00; 
in cities and towns of less than 1,000 inhabitants, 
$5.00; and persons operating such garages within 
one mile of the limits of all incorporated cities, 
$5.00. 

§ 993(187). Automobile parking-places. — Upon 

each iperson,, firm, or corporation operating 
what is commonly known as automobile parking- 
places, said parking-places being located on 
vacant lots, in cities or towns with a population 
of 50,000 or more inhabitants, $50.00; cities or 
towns of 25,000 to 50,000, $25.00; in cities or 
towns with a population of less than 25,000 in- 
habitants, $15.00, for each location where cars 
are parked for hire. 

§ 993 (188). Awning and tent makers. — Upon 
all awning and tent makers, $15.00 in each county. 

§ 993 (189). Bagatelle, billiard, jenny lind, pool 
or tivoli tables. — Upon each person, firm, or cor- 
poration operating for public use and charging for 
the use thereof, any billiard, bagatelle, jenny lind, 
pool or tivoli tables, for each table, a tax according 
to the following scales: In cities of 100,000 in- 
habitants or more, $100.00; in cities of 50,000 to 
100,000 inhabitants, $75.00; in cities of 25,000 to 
50,000 inhabitants, $50.00; in cities of 10,000 to 
25,000 inhabitants, $30.00; in cities or towns of 
less than 10,000 inhabitants, $20.00. 

§ 993 (190). Ball and racing parks. — Upon each 
person, firm, or corporation owning, leasing, or 
operating any park or place where baseball, foot- 
ball, or other similar game is played, or w'here 
automobile, motorcycle, horse, or bicycle races 
or contests are held, and where admission fees 
are charged, in cities of more than 50,000 inhab- 
itants, or within five miles thereof, $200.00; in 
cities with 20,000 to 50,000 inhabitants, or within 
five miles thereof, $100.00; in, cities with 10,000 
to 20,000 inhabitants, or within five miles thereof, 
$50.00; in cities or towns of less than 10,000 in- 
habitants, or within five miles thereof, $20.00. 
Provided that this tax shall apply only to those 
parks and places wherein professional games are 
played or professional contests are held. 

§ 993 (191). Barber-Shops. — Upon every barber- 
shop the sum of $5.00 for each chair in use, ex- 
cept that in cities or towns of less than 5,000 in- 
habitants the amount shall be $2.50 for each chair 
in use. 

§ 993 (192). Barber supplies. — Upon all agents 
for barber supplies, $50.00 for each place of busi- 
ness. 

§ 993 (193). Beauty parlors. — Upon each beauty 

[ 



parlor or shop, or manicure shoip, $25.00 for each 
place of business. Provided, that this tax shall 
not apply to -manicure shops operated in connec- 
tion with barber-shops. 

§ 993 (194). Bicycle dealers. — Upon every bi- 
cycle dealer selling or dealing in bicycles, either 
at wholesale or retail, for themselves or upon 
commissions or consignments, $10.00 for each 
place of business. All unsold bicycles belonging 
to dealer shall be liable to seizure and sale for 
payment of such tax. 

§ 993 (195). Bill distributors. — Upon all bill 
distributors and parties engaged in the business 
for profit in towns or cities, $25.00; provided, this 
tax is limited to cities of 15,000 population or 
more. 

§ 993(196). Book agents*. — Upon each agent or 
canvasser for books, maps, or lithographic prints, 
in each county in which he shall do business, 
$5.00. Provided this shall not apply to bona fide 
students earning their way through school or col- 
lege, or to persons selling Bibles only. 

§ 993(197). Bottlers (non-resident). — Upon 
each non-resident person, firm, or corporation 
delivering for sale by truck or trucks any carbo- 
nated beverages in this State, $150.00. 

§ 993 (198). Brokers; stocks and bonds. — 

Upon each person, firm, or corporation dealing in 
bonds or stocks, either exclusively or in connec- 
tion with other business, the sum of $100.00 for 
each town or city in which ^uch persons, firms, 
or corporations maintain an office 

§ 993(199)- Brokers; real estate. — Upon each 
person, firm, or corporation engaged in the busi- 
ness of buying or selling real estate on commis- 
sion, or as agents renting real estate, in cities of 
50,000 or more inhabitants, $50.00; in cities of 
25,000 to 50,000 inhabitants, $30.00; in cities of 
10,000 to 25,000 inhabitants, $20.00; in cities or 
towns of less than 10,000 inhabitants, $15.00. 
And if such person shall engage in auctioneering 
or selling property at public outcry or by auction 
sales, he shall also be liable for and required to 
pay the tax required of real estate auctioneers by 
paragraph 10 of this section, to wit: $100.00 in 
each county. 

§ 993 (200). Burglar- Alarms. — Upon all bur- 
glar alarm companies, or agents therefor, the 
sum of $25.00 for each agency or place of 
business in each county. 

§ 993 (201). Cafes and restaurants. — Upon 
every person, firm, or corporation, except hotels, 
operating any cafe, restaurant, or lunch-room 
with fifty or more tables, $100.00; twenty-five 
to fifty tables, $50.00; ten to twenty-five tables, 
$25.00; five to ten tables, $10.00; less than five 
tables, $5.00. Provided, that four seats or stools 
at tables or counters shall be construed on the 
same basis as a table. 

§ 993 (202). Carbonic acid gas. — Each per- 
son, firm, or corporation engaged in the busi- 
ness of manufacturing or vending soft drinks 
made of or containing carbonic acid gas or any 
substitute therefor shall pay, as a privilege li- 
cense to carry on such business, 4 cents on each 
pound of carbonic acid gas, or any substitute 

18] 



§ 993(203) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(212) 



therefor so used. Provided, that bottled drinks 
on which this license shall have paid may be re- 
sold in original packages without the payment of 
any further license, under this schedule. Each 
person, firm, or corporation engaged in such busi- 
ness shall keep accurate books and invoices 
showing the quantity of carbonic acid gas or any 
substitute therefor used in such business, and 
such other information relating to the business as 
may be reauired by the Comptroller-General, to 
enable the State tax officials to check up the re- 
turns herein required. At the end of each calen- 
dar quarterly period every person, firm, or corpo- 
ration engaged in such business shall make a re- 
port to the Comptroller-General on blanks to be 
furnished by the Comptroller-General, showing 
the amount of carbonic acid gas or other substi- 
tute therefor consumed during the preceding 
quarter, and such other information as the Comp- 
troller-General may require, verified by affidavit, 
and shall with the report remit the license herein 
provided for each pound of carbonic acid gas or 
other substitute therefor consumed, as shown by 
the report, and such remittance shall be paid into 
the State Treasury. If such report or remittance 
is not made within fifteen days after the end of 
the calendar quarter, there shall be added to the 
sum due for such license for the preceding quar- 
ter 10% additional license. The tax officials of 
the State shall have authority to examine th^ 
books and papers of any one engaged in such 
business, for the purpose of ascertaining the cor- 
rectness of all reports and remittances. Any per- 
son wilfullv failing or refusing to make the re- 
ports and remittances herein required shall be 
guilty of a misdemeanor, and any person wilfully 
making a false affidavit as to any report herein 
required shall be guilty of perjury. 

§ 993 (203). Cars operated for hire. — Upon each 
person, firm, or corporation operating or keeping 
automobiles for hire, whether in connection with 
a garage or not. a tax according to the following 
scale, whether in or outside of the corporate lim- 
its of any city or town, for each automobile so 
operated in or near cities or towns with less than 
1,000 inhabitants, $5.00; in or near cities with 1,000 
to 5,000 inhabitants, $10.00; in or near cities with 
5,000 to 15,000 inhabitants, $15.00; in or near 
cities with 15,000 to 30,000 inhabitants, $20.00; in 
or near cities with 30,000 to 50,000 inhabitants, 
$25.00; in or near cities with more than 50,000 in- 
habitants, $40.00. 

§ 993 (204). Cars operated for hire over fixed 
routes. — Upon every person, firm, or corporation 
operating automobiles for transportation of pas- 
sengers upon a regular fixed route, commonly 
known as jitneys, for a uniform fare, for each five 
passenger car or less, $15.00; and for each car 
carrying more than five passengers, $25.00. 

§ 993 (205). Cars for hire; "Drive-It- Your- 
self." — Upon each person, firm, or corporation 
operating or keeping for hire automobiles, com- 
monly known as "Drive-It- Yourself" business, or 
automobiles without drivers for hire, $150.00 for 
each place of business. Provided that the tax 
fixed herein shall not exceed $10.00 for each car 
operated. 

§ 993 (206). Coal and coke. — Upon each per- 
son, firm, or corporation dealing in coal and coke, 



whether for themselves or as agents or as 
brokers, in cities of more than 1,000 inhabitants 
and not more than 10,000, $10.00; in cities of more 
than 10,000 and not more than 20,000 inhabitants, 
$50.00; in cities of more than 20,000 inhabitants, 
$100.00 for each place of business. 

§ 993 (207). Cemetery companies. — Upon all 
cemetery companies, agencies, offices, etc., $100.00 
in each county. 

§ 993 (208). Circuses. — Upon each circus com- 
pany or other company or companies giving such 
exhibition beneath or within a canvas enclosure, 
advertised in print or parade in any manner what- 
soever as a circus, menagerie, hippodrome, spec- 
tacle, or show implying circus, the following tax 
measured by the number of railroad-cars, auto- 
mobiles, trucks, or wagons used in transporting 
said circus — railroad cars, automobiles, trucks and 
wagons hereinafter referred to as cars. A circus 
requiring more than 80 cars, $1,000.00 per day; 
40 to 80 cars, $500.00 per day; 20 to 40 cars, 
$100.00 per day; 10 to 20 cars, $50.00 per day; 
less than 10 cars, $25.00 per day, for each day it 
may exhibit in the State of Georgia. 

§ 993 (209). Circus side-shows. — Upon each 
side-show accompanying a circus company in any 
county having a town or city of 5,000 population 
or more, $50.00 per day; and in all other coun- 
tries, $25.00 per day. 

§ 993 (210). Concerts, shows, and exhibitions. 

— Upon all concerts, shows, and exhibitions 
charging an admission, in or near cities of less 
than 5,000 inhabitants, $25.00; in or near cities of 
more than 5,000 and not more than 20,000, $50.00; 
in or near cities of more than 20,000 and not more 
than 50,000, $75.00; in or near cities of more than 
50,000, $100.00 for each day. Provided, that this 
section shall not apply to exhibitions given by lo- 
cal performers, nor to exhibitions the entire pro- 
ceeds of which are for charitable, benevolent pur- 
poses, nor to entertainments commonly known as 
ohautauquas. Prov 1 ded further, this section shall 
not appl} r to histrionic, dramatic, and operatic per- 
formances given in regular licensed theaters and 
opera houses, but upon each such theater or opera 
house, in towns of less than 2,000 inhabitants, 
$2.50 per month; in cities from 2,000 to 5,000 in- 
habitants, $4.00 per month; in cities from 5,000 to 
10,000 inhabitants, $7.00 per month; in cities from 
10,000 to 25,000 inhabitants, $10.00 per month; in 
cities of over 25,000 inhabitants, $12.50 per 
month. 

§ 993 (211). Commercial reporting agencies. — 

Upon each person, firm, or corporation engaged 
in the business of a commercial reporting agency, 
in each county in the State where they have an 
office or branch office, $125.00. 

§ 993 (212). Street carnivals. — Upon every mid- 
way combination of small shows, or street fair 
or street carnival, the sum of $25.00 each week 
or fractional part thereof, for each separate tent, 
enclosure, or place where an admission fee is 
charged or collected, either directly or indirectly, 
co witness or hear any performance, or where 
anything may be exhibited for admission or 
ticket; and upon every merry-go-round or flying 
horse accompanying any midway combination, 
street fair or street carnival, in each city or town 



[19] 



§ 993(213) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(218) 



in this State in which it does business, or in each 
county where they may operate outside of the 
limits of any city or town in this State, $25.00. 
Provided, that should the said midway combina- 
tion, or any of them specified above, be held in 
connection with county, district, or State agri- 
cultural fairs of this State and under the direction 
of, and within the grounds at the time of holding 
said fairs, the whole amount of said tax for said 
attraction when so held shall be $25.00 per week 
or fractional part thereof. 

§ 993 (213). Corporations, domestic. — All cor- 
porations incorporated under the laws of Georgia 
shall, except those that are not organized for pe- 
cuniary gain or profit and those that neither 
charge nor contemplate charging the public for 
services rendered, in addition to all other taxes 
now required of them by law, are hereby re- 
quired to pay each year annual license or occupa- 
tion tax as specified in the following scale: 

Corporations with capital not exceeding $10,- 
000, $10.00. 

Corporations with capital over $10,000, and not 
over $25,000, $15.00. 

Corporations with capital over $25,000, and not 
over $50,000, $20.00. 

Corporations with capital over $50,000 and not 
over $75,000, $30.00. 

Corporations with capital over $75,000, and not 
over $100,000, $50.00. 

Corporations with capital over $100,000 and not 
over $300,000, $100.00. 

Corporations with capital 
not over $500,000, $200.00. 

Corporations with capital 
not over $1,000,000, $300.00. 

Corporations with capital over $1,000,000 and 
not over $2,000,000, $500.00. 

Corporations with capital over $2,000,000 and 
not over $3,000,000, $600.00. 

Corporations with capital over $3,000,000, and 
not over $4,000,000. $700.00. 

Corporations with capital over $4,000,000, and 
not over $5,000,000, $800.00. 

Corporations wth capital over $5,000,000, and 
not over $6,000,000, $900.00. 

Corporations with capital over $6,000,000, $1,- 
000.00. 

Tax required by this paragraph to be paid to 
the tax-collector of the county where such corpo- 
ration has its home office of business, and the 
payment of this tax will relieve such corporation 
from the payment of said tax in any other county 
in which it does business, and to that end the tax- 
collector shall furnish such duplicate receipts as 
may be needed for authorized agents of the cor- 
poraton in other counties of this State. 

§ 993 (214). Corporations, foreign. — Upon 
every agent or representative of any foreign or 
non-resident corporation, said agent or represen- 
tative having a place of business or office in this 
State, in addition to all other taxes now required 
of them by law, shall be and they are hereby re- 
quired to pav each year an annual license or oc- 
cupation tax fixed in accordance with the capital 
stock of the corporation represented by them, as 
specified in the preceding paragraph of this sec- 
tion (wherein is fixed the license or occupation 
tax required of corporations chartered under the 
laws of Georgia), per schedule or scale therein 



over $300,000 and 
over $500,000 and 



set forth. Provided, that if such foreign or non- 
resident corporations shall pay to the Comptrol- 
ler-General of this State the amount of the occu- 
pation or license tax prescribed as per said sched- 
ule for resident corporations, then the agents of. 
such foreign or non-resident corporations shall 
be relieved from said occupation tax. And to this 
end said foreign corporations shall register their 
name, capital stock, and the names of their agents 
with the Comptroller-General at the beginning of 
each year; and upon said license or occupation. 
tax being paid, it shall be the duty of the Comp- 
troller-General to furnish said corporation a cer- 
tificate or duplicate receipt for each agent that 
said tax has been paid, and the presentation of 
such certificate or duplicate receipt by such agent 
to the tax-collector of his county shall be sufficient 
evidence of such payment and authorized the 
agent to be relieved of said tax. The payment of 
this tax shall not be construed so as to relieve the 
corporation or agent of an}^ other license or occu 
pation tax whatever. Provided, that this and 
paragraph 44 of this section shall not apply to in- 
surance companies, or to sewing-machine com- 
panies, which are separately taxed by other pro- 
visions of this Act. Provided further, that all 
returns by corporations, resident or non-resident, 
must be made under oath; and when any corpora- 
tion paying this license or occupation tax requires 
or demands more than two duplicate certificates 
for agents, then such corporation shall be required 
to pay an additional fee of $1.00 for each duplicate 
certificate or receipt over and above the first two 
mentioned. 

§ 993(215). Dance halls. — Upon each person or 
persons operating public dance halls where danc- 
ing is permitted or taught for hire, $100.00 for 
each place of business. 

§ 993(216). Devices, bowling and ten-pin alleys, 
cane racks, shooting galleries, etc. — Upon each 
person, firm, or corporation operating for gain a 
bowling, box-ball, ten-pin alley or alley of like 
character, shooting galleries, or booth where fire- 
arms are used for firing at a target, and upon per- 
sons operating for gain any table, stand, machine, 
or place for performance of games not prohibited 
by law, and any rack or booth or place for pitch- 
ing or throwing rings at canes, knives, or other 
things of value, or any table or stand for rolling 
balls for play or for sale or disposition of prizes, 
for each stand, table, alley, gallery, machine, rack, 
booth, or other place put in use at each place of 
business in this State, the sum of $50.00; provided 
this paragraph shall include automatic baseball 
games of all kinds. 

§ 993 (217). Directories. — Upon each person, 
firm, or corporation compiling a city directory or 
directories of any character, and selling or supply- 
ing the same on subscription, the sum of $25.00 for 
each county in which a directory is published. 
The above tax shall not be construed to apply to 
telephone companies issuing directories for use in 
the telephone exchanges. 

§ 993 (218). Dry-Cleaning.— Upon all persons, 
firms, or corporations, engaged in dry-cleaning, 
$25.00 for each place of business. Provided, this 
paragraph shall not apply to laundries paying the 
tax imposed b}' paragraph 62 of this Act, nor to 
pressing-clubs paying the tax imposed by para- 
graph 89 of this Act. 



[20] 



§ 993(219) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(228) 



§ 993(219). Electrical contractors. — Upon all 
electrical contractors, $25.00 for each county. 

§ 993(220). Emigrant agents. — Upon each emi- 
grant agent, and upon each employee of such 
agents, doing business in this State, $1,000.00 for 
each county in which such agents or employee 
may do or offer to do business. Provided, that 
no emigrant agent or employee shall take from 
this State or attempt to take from this State any 
person until after first giving a bond to be ac- 
cepted and approved by the Commissioner of 
Commerce and Labor, conditioned to pay any 
valid debt owing by said person to any citizen of 
this State. 

§ 993(221). Employment agencies. — Upon all 
•employment agencies or bureaus doing business 
in this State, $50.00 for each county. 

§ 993(222). Fire-Engines and apparatus. — Upon 
each dealer in fire-engines and apparatus or either 
•of them, $100.00 for each place of business. 

§ 993(223). Fish dealers. — Upon each person, 
firm, or corporation engaged in the business of 
packing or shipping oysters, shrimp, or fish, $50.00 
for each county. 

§ 993(224). Hotels. — Upon every person, firm, 
or corporation operating a hotel, in counties of 
over 30,000 inhabitants, a tax of $1.00 for each 
sleeping-room per annum, and in counties of less 
than 30,000 inhabitants, 50 cents per annum for 
each sleeping-room. 

§ 993(225). Horse-Traders (traveling) or gypsies. 

— Upon each company of traveling horse-traders, 
or traveling gypsies, or traveling companies or 
other transients, traveling persons or firms, en- 
gaged in trading or selling merchandise of live 
stock of any kind, or clairvoyant, or persons en- 
gaged in fortune-telling, phrenology, or palmistry. 
$250.00, to be collected by the tax collector in each 
county and distributed as follows: To the county 
where collected $125.00; to the State $125.00. This 
tax to be collected in each county where they 
carry on either kind of business herein mentioned. 
This tax shall apply to any person, firm, or cor- 
poration, who themselves or by their agents travel 
through the State carrying live stock and carrying 
with them cooking utensils, and live in tents or 
travel in covered wagons and automobiles, and 
who may be a resident of some county or who 
reside without the State, and who are commonly 
called traveling horse-traders and gypsies, and 
such persons or corporations shall be liable to 
pay this tax. Such tax shall constitute a lien on 
any live stock owned by such traveling persons 
or firms. Provided, that no Confederate Soldier, 
indigent, or any other person, firm, or corporation 
shall be exempted from the tax provided under 
this section. Provided, that nothing herein shall 
prevent any municipality, by proper ordinance, 
from prohibiting the practice of fortune-telling, 
phrenology, palmistry, or like practices within its 
limits. 

§ 993(226). Ice cream dealers. — Upon each per- 
son, firm, or corporation manufacturing ice cream 
or selling same at wholesale, in or near cities of 
more than 50,000 inhabitants, $100.00; in or near 
cities from 20,000 to 50,000 inhabitants, $75.00; in 
or near cities from 10,000 to 20,000 inhabitants, 
$50.00; and in or near cities of less than 10,000 
inhabitants, $10.00. 

[21 



§ 993(227). Insurance agents. — (a) Upon each 
and every local insurance agent, and upon each 
and every solicitor or subagent, for any resident 
or non-resident life, fire, marine, accident, casu- 
alty, liability, indemnity, fidelity, bonding or surety 
insurance company doing business in this State, 
$10.00, payable to the Insurance Commissioner, 
for each county in which said agent, solicitor, or 
subagent shall transact or solicit business. 

(b) Upon each and ever}- local insurance ageni, 
and upon each and every solicitor or subagent, 
for any resident or non-resident assessment life- 
insurance company, or industrial life, accident, or 
sick-benefit insurance company, live-stock insur- 
ance company or fire and storm co-operative as- 
sessment fire-insurance companies doing business 
in this State, $10.00 payable to the Insurance Com- 
missioner, for each county in which said agent, 
solicitor, or subagent shall transact or solicit 
business. 

(c) Upon each and every general, special, travel- 
ing, state, or district agent, or manager, or assist- 
ant manager, by whatever name he may be 
designated in his contract, of any resident or non- 
resident life, fire, marine, accident, casualty, lia- 
bility, indemnity, fidelity, bonding or surety in- 
surance compan}^, doing business in this State, 
$100.00 payable to the Insurance Commissioner, 
whose receipt shall authorize the person named 
therein to go into any county in the State without 
the payment of an additional tax. 

(d) Upon each and every general, special, travel- 
ing, state, or district agent, manager, district man- 
ager, assistant manager, superintendent, or assist- 
ant superintendent, by whatever name he may be 
designated in his contract, of any resident or non- 
resident assessment life-insurance company, or in- 
dustrial life, accident, or sick-benefit insurance 
company, or live-stock insurance company, doing 
business in this State, $100.00 payable to the In- 
surance Commissioner, whose receipt shall au- 
thorize the person named therein to go into any 
county in the State without the payment of an 
additional tax. 

(e) Upon all adjustment bureaus employing ad- 
justers, a tax of $50.00 for each person who adjusts 
any loss, said tax payable to the Insurance Com- 
missioner, whose receipt shall authorize the per- 
son named therein to go into any county in the 
State. 

(f) Upon each and every person not connected 
with an adjustment bureau, who adjusts insurance 
losses. $50.00 payable to the Insurance Commis- 
sioner, whose receipt shall authorize the person 
named therein to go into any county in the State. 
Provided, that this tax shall not apply to local in- 
surance agents who adjust losses without re- 
muneration. 

(g) The occupation taxes imposed by this par- 
agraph must be paid in advance by said agents to 
the Insurance Commissioner, for the fiscal year 
for which they are levied, before said agent shall 
be authorized to act as agent for any insurance 
company. Provided, that railroad-ticket agents 
selling accident tickets shall not be deemed in- 
surance agents in the sense of this paragraph. 

§ 993 (228). Junk dealers. — Upon each person. 
firm, or corporation engaged in the business of 
dealing in junk, in or near cities of over 50,000 
inhabitants, $100.00; in or near cities of from 10,000 

] 



§ 893(229) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(241) 



to 50,000 inhabitants, $50,00; in or near cities of 
from 3,000 to 10,000 inhabitants, $25.00; in cities 
or towns under 3,000 or within ten miles thereof, 
$10.00. Each junk dealer, his clerk, agent, or 
employee shall keep a book, open to inspection, 
in which he shall make entries of all railroad iron, 
brass, pieces of machinery, plumbing materials, 
unused farm implements, automobile parts, fix- 
tures, or accessories purchased by him, together 
with the name of the party from whom pur- 
chased; and upon failure to keep such books or 
record and produce it on demand, the said dealer 
shall forfeit his license. 

§ 993 (229). Legerdemain and sleight of hand.— 

Upon each exhibition of feats of legerdemain or 
sleight of hand, or other exhibition and enter- 
tainment of like kind, $25.00 in each county. 

§ 993 (230). Legislative agents. — Upon each 
person registered under the Act of the General 
Assembly approved August 11, 1911 (see Acts 
1911, page 151), the sum of $250.00 for every 
person, firm, or corporation represented by said 
agent. 

§ 993 (231). Laundries. — Upon each person, 
firm, or corporation operating a laundry or dye- 
ing establishment, $100.00 if employing ten or 
more persons; $50.00 if employing five and not 
more than ten persons; $25.00, if not employing 
more than five persons. 

§ 993 (232). Lighting systems. — Upon each 
person, firm, or corporation selling, whether as 
manufacturer, agent, or dealer in any lighting 
system, whether gas, gasoline, or electrical, $25.00 
in each county. 

§ 993 (233). Lightning-rods. — Upon each per- 
son, firm, or corporation who may contract for 
or engage in the business of fitting up or erecting 
lightning-rods in this State, the sum of $10.00 
for each county in which he may contract for, or 
erect, or put in place any lightning-rod or rods 
upon any structure or building therein; and it 
shall be the duty of the tax-collector to whom the 
tax is paid to issue the person paying such tax a 
license receipt showing such payment. When a 
license for erecting a certain brand or make or 
rod has been issued for a county, additional li- 
censes for erecting the same brand or make shall 
be issued upon the payment of $5.00 each. 

§ 993 (234). Live-stock dealers. — Upon each 
person, firm, or corporation dealing in live stock, 
having a fixed place of business, in or near cities 
of more than 50,000 inhabitants, $25.00; in or near 
cities of from 10,000 to 50,000 inhabitants, $15.00; 
in or near cities or towns of less than 10,000 in- 
habitants, $10.00 for each place of business. 

§ 993 (235). Lumber dealer's. — Upon every 
person, firm, or corporation engaged in the man- 
ufacture of lumber products of any character or 
dealing in lumber or lumber products, whether 
for themselves or as agents or brokers, in or 
near cities of 1,000 inhabitants and not more than 
10,000, $10.00; in or near cities of more than 10,- 
000 and not more than 20,000 inhabitants, $50.00; 
in or near cities of more than 20,000 inhabitants, 
$100.00 for each place of business. 

§ 993 (236). Machines (Store cash registers).— 

Upon each manufacturer or wholesale dealer in, 



or agent for the sale of, any cash or account reg- 
ister, $100.00 for each place of business in this 
State. 

§ 993 (237). Machines (Weighing or calculat- 
ing). — Upon each manufacturer or wholesale or 
retail dealer in, or agent for the manufacturer of, 
any weighing scale or scales for calculating weight 
or prices of commodities, $25.00 for each place of 
business in this State. 

§ 993 (238). Machines (Adding machines). — 

Upon every manufacturer of, or wholesaler or re- 
tail dealer in, or agent for the sale of any adding 
or calculating machine, check-protector, and do- 
mestic ice machines retailing for more than ten 
dollars, $25.00 for each place of business in coun- 
ties of 20,000 population or under; $50.00, in coun- 
ties of a population of over 20,000 and under 50,- 
000; and $100.00 in counties of over 50,000, for 
each place of business in this State. 

§ 993(239). Machines (Typewriters). — Upon 
every manufacturer of, or wholesaler or retail 
dealer in, or agent for the sale of any typewriter 
or typewriting machine, $25.00 for each place of 
business in counties of 20,000 population or un- 
der; $50.00 in counties of over 20,000 population 
and under 50,000; $100.00 in counties of over 50,- 
000; this tax to be paid for each place of business 
in the various counties of this State. 

§ 993 (240). Machines (Slot). — Upon every 
machine, punchboard, or other device, operated, 
used, or kept in this State, wherein is kept any 
article to be purchased by depositing therein or 
paid therefor any coin or thing of value, and for 
which may be had any article of merchandise 
whatsoever, where there is no chance incurred by 
reason thereof, and where the deposit of coin or 
other thing of value does not exceed one cent 
per operation, $2.00 for each machine, punchboard, 
or other device for each county where kept, set 
up, used, or operated. 

(b). Upon each slot-machine wherein may be 
seen any picture or music ma}^ be heard by de- 
positing in said machine any coin or thing of 
value, and each weighing machine or scale, and 
every machine making stencils by use of contriv- 
ances operated by slot, wherein coin or other 
thing of value is to be deposited or used, the de- 
posit of coin or other thing of value not exceed- 
ing one cent per operation, $1.00 for each ma- 
chine where kept, set up, used, or operated. On 
all other machines described in this paragraph, 
charging more than one cent per operation, $5.00 
for each machine where kept, set up, used, or 
operated. Provided further, that no machine 
described in this paragraph shall be subject to 
more than one tax. 

§ 993 (241). Machinery and equipment. — Upon 
every manufacturer of reaping, mowing, binding, 
or thrashing machines, gas, electrical, or oil en- 
gines, agricultural machinery propelled by gas, 
and road-building machinery propelled by gas or 
oil, culverts, road-machines and road-graders, 
selling or dealing in such machinery by itself or 
its agents in this State, and all wholesale and re- 
tail dealers in the above-mentioned machinery, 
selling such machinery manufactured by compa- 
nies that have not paid the tax thereon named, 
shall pay $100.00 annually to the Comptroller- 



[22] 



§ 993(242) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(252) 



General on the first of January of each year or at 
the time of commencement of business, same to 
be known as a license fee for the privilege of do- 
ing business in this State. All companies and 
others paying this license fee shall, at the time of 
payment, furnish the Comptroller-General with 
a list of all agents authorized to sell the aforesaid 
machinery of their manufacture, or under their 
control, and shall pay to said Comptroller-Gen- 
eral the sum of $10.00 for each of said agents, for 
the fiscal year or fractional part thereof, for each 
county in which the said agents may do business. 
Upon the payment of $10.00 the Comptroller- 
General shall issue to each of said agents a certifi- 
cate of authority to transact business in this State. 
Before commencing business in this State all such 
agents shall be required to register their names 
with the Ordinaries of those counties in which 
they intend to do business, and shall exhibit to 
said ordinaries their license from the Comptroller- 
General; wholesale and retail dealers in the above- 
mentioned machinery shall be required to pay tax 
provided herein for manufacturers of the above 
machines sold by them, unless said manufac- 
turers, have paid the tax required by this Act. All 
unsold machinery belonging to manufacturers, 
dealers, or other agents, or in their possession or 
the possession of others, shall be liable to seizure 
and sale for the payment of such fees, license, or 
tax. None of the provisions of this paragraph shall 
apply to licensed auctioneers selling second-hand 
machinery, or to officers of the law under legal 
process, or to merchants buying or selling said 
machinery on which a license tax has been paid as 
herein provided, and who keep the same and sell 
and deliver them from their place of business. 
Any person who shall violate the provisions of 
this paragraph shall be liable to prosecution for a 
misdemeanor, and on conviction shall be punished 
as prescribed in section 1065, volume 2 of the Code 
of 1910. 

§ 993(242). Merry-Go-Rounds. — Upon the 
owner, manager, keeper, or lessee of any merry- 
go-round or flying horses, or flying swings, or 
human roulettes, or scenic devices run by machin- 
ery, or of an elevated railway or scenic railway, 
similar contrivance kept for gain, either directly 
or indirectly, for each place of business in this 
State, and for each place where operated, in coun- 
ties in which there is a city of 50,000 or more in- 
habitants, $50.00; in all counties in which there are 
cities between 10,000 and 50,000 inhabitants, $30.- 
00; in counties having a city between 5,000 and 
10,000 inhabitants, $20.00; in all other counties, 
$10.00. 

§ 993 (243). Monument dealers. — Upon each 
person, firm, or corporation selling monuments or 
tombstones, $25.00 in each county in which they 
shall have a place of business. 

§ 993 (244). Motor-Buses. — Upon every person, 
firm, or corporation, operating a motor-bus for the 
transportation of passengers upon a regular or 
fixed route, $25.00 for each bus of a passenger 
capacity of seven or le§s, and on each bus of more 
than said capacity the sum of $50.00; provided 
they shall be exempt from local •municipal license 
tax; provided further, that this section shall not 
apply to passenger buses transporting school chil- 
dren exclusively. 

[2 



§ 993 (245). Motor-Trucks and trailers. — Upon 
every person, firm, or corporation engaged in the 
operation of motor-trucks or trailers for the trans- 
portation of freight for hire, $25.00 for each truck 
or trailer. Provided, this section shall not apply 
to persons, firms, or corporations hauling farm 
produce, livestock, and fertilizers exclusively. 
Provided, that the width of load of trucks and 
trailers shall not be more than eight feet. 

§ 993 (246). Motorcycle dealers. — Upon every 
person, firm, or corporation selling or dealing in 
motorcycles or motor attachments for bicycles, 
whether in connection with the business of selling 
bicycles or automobiles or otherwise $25.00 for 
each place of business. 

§ 993 (247). Moving pictures. — Upon each and 
every electric show or exhibition of moving 
pictures, or illustrated songs, except where given 
for educational purposes, for each place of busi- 
ness in or near cities or towns of less than 2,000 
inhabitants, $2.00 per month; in or near cities or 
towns of from 2,000 to 5,000 inhabitants, $3.00 per 
month; in or near cities of from 5,000 to 10,000 
inhabitants, $7.00 per month; in or near cities of 
from 10,000 to 25,000 inhabitants, $10.00 per 
month; in or near cities of from 25,000 to 50,000 
inhabitants, $12.50 per month; in cities of 50,000 
or more inhabitants, $25.00 per month, except in 
suburbs of cities of more than 50,000 inhabitants 
where the tax shall be $12.50 per month. 

§ 993 (248). Motion picture supply houses. — 

Upon all motion-picture supply-houses, or film- 
distributing agencies, $100.00 for each place of 
business. 

993(249). Musical instruments, graphophones, 
organs, phonograph pianos, and victrolos, radios 
or radio supplies. — Upon each person, firm, or cor- 
poration engaged in the business of selling or 
renting, as agents or dealers, any of the above or 
similar instruments, in or near cities of more than 
50,000 inhabitants, $100.00; in or near cities from 
25,000 to 50,000 inhabitants, $50.00; in or near 
cities of from 10,000 to 25,000 inhabitants, $25.00; 
in or near cities or towns of less than 10,000 in- 
habitants, $10.00 for each place of business. 

§ 993 (250). News dealers. — Upon each person, 
firm, or corporation carrying on the business of 
selling books, magazines, papers, fruits, confec- 
tions, or other merchandise on the railroad-trains 
in this State, $500.00. No county or municipality 
shall have authorit}' to levy any additional tax for 
the privilege of carrying on said business. 

§ 993 (251). Packing-Houses. — Upon every in- 
dividual agent or firm of agents of any packing- 
house, and upon any and every individual agent 
or firm of agents of any person, firm, or corpora- 
tion dealing in any packing-house products or 
goods, doing business in this State, for each place 
of business in each county having a city situated 
therein with a population of 30,000 or more, 
$300.00; for each place of business in each county 
with a population of from 15,000 to 30,000, $150.- 
00; for each place of business in each county with 
a population of from 5,000 to 15,000, $50.00; for 
each place of business in each county with a pop- 
ulation of less than 5,000, $25.00. 

§ 993 (252). Patent rights. — Upon each person, 

3] 



§ 993(253) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(264) 



firm, or corporation selling patent rights ir> 
Georgia, the sum of $50.00 for each county in 
which said business is carried on. 

§ 993(253). Selling in baseball parks. — Upon 
each person, firm, or corporation, in cities having 
a population of 40,000 or more inhabitants, carry- 
ing on the business of selling papers, fruits, 
drinks, or other articles of merchandise in base- 
ball-parks, $100.00. 

§ 993 (254). Pawnbrokers. — Upon each person, 
firm, or corporation carrying on the business of 
pawnbrokers, for each place of business in this 
State, $200.00. If any pawnbroker shall sell, or 
offer for sale, or expose in his place of business 
any pistol, pistol or rifle cartridges, dirk, bowie- 
knife, or metal knucks, whether sold as unre- 
deemed pledges or otherwise, he shall also be held 
subject to and required to pay the license-tax re- 
quired of the dealers in such articles by section 
993 (257). 

§ 993 (255). Peddlers. — Upon every peddler or 
traveling vendor of any patent or proprietary 
medicine or remedies, or appliances of any kind, 
or special nostrum, or jewelry, or stationery, or 
drugs, or soap, or of any kind of merchandise or 
commodity whatsoever (whether herein enumer- 
ated or not), peddling or selling any such goods or 
articles or other merchandise, in each county 
where the same or any of them are peddled, sold 
or offered for sale, $50.00. Provided, that no 
vendor or peddler of perishable farm products 
raised on Georgia farms shall be required, under 
this paragraph or any other of this Act, to pay 
any license fee or tax, State, county or municipal, 
when same is accompanied by affidavit that such 
farm product is exclusively Georgia grown. And 
provided further, that any person qualifying un- 
der this papagraph and under sections 18:86 et 
sequitur of Civil Code of Georgia, 1910, to peddle, 
shall be entitled to one helper only to assist him 
in carrying on his business as a peddler. 

(b) Upon every peddler of stoves or ranges for 
cooking purposes or clocks or albums, or picture- 
frames, for each county wherein he may sell or 
offer for sale either of said articles, $25.00. 

(c) Upon any traveling vendor of any patent 
churn, or patented fence, or patented agricultural 
implements, or tools, or other patented articles, 
$25.00 for each county in which he may sell or 
offer to sell either of the enumerated articles. 

(d) Upon every traveling vendor using boats, 
barges, or other water-craft for the purpose of 
selling goods of any kind, not prohibited by law, 
on the rivers or waters within the limits of this 
State, for each county where he may sell such 
wares, goods, or merchandise, $50.00. The tax 
shall be a lien upon the boat, barge, or other water- 
craft, and its contents, without regard to the 
ownership thereof. 

(e) The term "peddler" is hereby defined as 
follows, to wit: Any person carrying goods, wares 
or merchandise of any description with him, other 
than farm products, either in a pack or vehicle of 
any character whatever, and who makes delivery 
of goods ordered on the day of taking orders, shall 
be held and deemed a peddler, whether such sales 
are for consumption or resale. 

§ 993(256). Pictures and picture-frames. — Upon 

[: 



every person, firm, or corporaton who, in person 
or through its agents, sells and delivers photo- 
graphs or pictures of any character, or picture- 
frames, whether they make charge for such 
frames or not, $15.00 in each county in which this 
business is done. Provided, this shall not apply 
to regular merchants dealing in such goods at 
their usual place of business. 

§ 993 (257). Pistols. — Upon each and every 
dealer in pistols or in toy pistols which shoot 
cartridges, or who deals in pistol cartridges, or 
rifle cartridges, dirks, bowie-knives, or metal 
knucks, for each place of business in this State, 
in or near towns or cities of 10,000 or less inhabi- 
tants, $50.00; in or near cities of over 10,000 in- 
habitants, $100.00, provided further, thai no per- 
son shall be exempted from the payment of this 
tax. 

§ 993 (258). Playing- Cards.— Upon each dealer 
in playing-cards, $10.00 for each place of business. 

§ 993 (259). Photographers. — Upon every 
daguerrean, ambrotype, photographic, and simi- 
lar artists carrying on the business of making 
pictures, $10.00 in each county. 

§ 993 (260). Pressing-Clubs. — Upon each per- 
son, firm, or corporation operating a pressing- 
club, $5.00 for each place of business. Provided, 
that if such person, firm, or corporation shall en- 
gage any dry-cleaning business, he shall in addi- 
tion pay the sum provided for in section 993(218). 
herein. 

§ 993 (261). Practioners (Itinerant). — Upon 
every intinerant doctor, dentist, optician, optom- 
etrist, veterinary surgeon, osteopath, chiroprac- 
tor, or specialist of any kind, doing business in 
this State, $25.00 for each county in which they 
may practice or do business. Provided, that if 
any one said itinerant specialists shall peddle or 
sell any drug, medicine, remedy, appliance, spec 
tacles, glasses, or other goods in connection with 
the practice of his profession, he or they shall be 
subject to the tax required of peddlers, or travel- 
ing vendors of patent or proprietary medicine, 
nostrums, etc., by section 993(225), $50.00 
in each county where they may offer to sell such 
articles. Provided further, that the provisions ot 
this paragraph shall not apply to persons whose 
fixed place of business is in any county of this 
State, and who have paid the professional tax re- 
quired by section 993(172). 

§ 993 (262). Rinks (Skating). — Upon the 
owner, manager, keeper, or lessee of any skating- 
rink in this State, where any fee or charge is made 
for admission, for the use of skates or skating, in 
counties having a population of more than 100,- 
000, the sum of $100.00; in counties having a pop- 
ulation of 50,000 and not over 100,000, the sum of 
$50.00; in counties having a population less than 
50,000, the sum of $25.00 for each place of busi- 
ness. 

§ 993(263). Salary and wage buyers. — Upon 
each person, firm, or corporation or partnership 
buying salary or wage accounts and all negotiable 
papers, $100.00 for each office or place of business 
maintained. 

§ 993(264). Safes and vaults. — Upon each per- 
son, firm, or corporation or agent thereof selling 

4] 



§ 993(265) 



AD VALOREM, SPECIFIC. AND OCCUPATION TAXES 



§ 993(272) 



safes or vaults, or vault doors or other vault fix- 
tures, $100.00 for each place of business. 

§ 993(265). Sanitariums — Upon hospitals and 
sanitoriums, or institutions of like character, 
whether incorporated or net, conducted for gain, 
in or near cities of more than 20,000 population, 
$100.00. In or near cities or towns of less than 
20,000, $25.00. Provided, that the above tax shall 
not apply to public hospitals maintained by 
municipal corporations for charitable purposes 
only. 

§ 993(266). Shows (Dog and pony.) — Upon 
each dog, pony, or horse show, where the entire 
show is exclusively an exhibition of trained dogs, 
ponies, or horses and monkeys, or a combination 
of any of them, beneath a tent, canvas, or enclos- 
ure, where an admission fee of fifteen cents or 
more is charged, the sum of $50.00 for each day it 
may exhibit; and upon such shows with an admis- 
sion fee of less than fifteen cents, the sum of 
$30.00 for each day it may exhibit in this State. 

§ 993 (267). Shows (Vaudeville). — Upon each 
person, firm, or corporation operating vaudeville 
shows which are given under tents or places other 
than regular licensed theaters, in or near cities 
or towns of less than 1,000 inhabitants, $2.50 per 
week; in or near cities or towns of 1,000 to 5,000 
inhabitants, $5.00 per week; in or near cities or 
towns of 5,000 to 10,000 inhabitants, $7.50 per 
week; in or near cities or towns of 10,000 to 25,000 
inhabitants, $10.00 per week; in or near cities or 
towns of 25,000 to 50,000 inhabitants, $20.00 per 
week; in or near cities or towns of more than 50,- 
000 inhabitants, $50.00 per week. 

§ 9193(268). Sprinklers (Automatic). — Upon all 
automatic sprinkler companies, or agents there- 
for, the sum of $25.00 for each agency or place of 
business in each county. 

§ 993 (269). Soda-Fountains. — Upon each per- 
son, firm, or corporation running or operating 
soda-fountains in this State, having one draught 
arm or similar device used in drawing carbonated 
water, $5.00; and for each additional arm or de- 
vice, $5.00. 

§ 993 (270). Soft-Drink syrups.— Upon all per- 
sons and companies carrying on, in this State, the 
business of manufacturing or selling, by wholesale 
or retail, or distributing from any depot, car, or 
warehouse or agency, any carbonated waters or 
syrups or other articles to be used in corbonated 
water, or intended to be fixed with or blended 
with corbonated water to be sold as soft drinks 
(not including imitations of beer, wine, whiskey, 
or other intoxicating liquor), as an occupation 
tax for the privilege of carrying on said business, 
an amount payable at the end of each quarter, 
equal to one half one per cent ( l / 2 %) of the 
gross receipts from said business for said 
quarter in this State. Within three days from the 
end of each quarter of the calendar year each per- 
son or company engaged in said kind of. business 
shall make returns under oath to the Comptroller- 
General of this State, showing the amount of said 
gross receipts, with a detailed statement of the 
parties from whom said receipts are received. In 
case of a corporation, th*e return shall be made 
under oath by the president, if a resident of this 

[2 



State; and if the president is not such resident, 
by the officer or person in charge of the business 
of said corporation in this State. Upon failure of 
any person required by this paragraph to make 
such returns within ten days after the expiration 
of such quarter, he shall be quilty of a misdemea- 
nor, and shall be liable to prosecution and be pun- 
ished as now provided in cases of misdemeanor. 
Upon the making of such returns, the person or 
company liable to said tax shall pay the same to 
the Comptroller-General, and upon failure to pay 
the same the Comptroller-General shall issue an 
execution for said tax against the property of the 
person or company liable to said tax. If no re- 
turns be made or if the Comptroller-General be- 
lieves said returns are false, the Comptroller-Gen- 
eral shall ascertain the amount of said gross re- 
ceipts from the best information in his power, and 
assess the tax according, after giving the company 
or person liable to said tax at least five day's no- 
tice of the time of assessing said tax, and issue his 
execution accordingly against the person or cor~ 
poration carrying on said business. Any person, 
company, or agent carrying on any kind of busi- 
ness specified in this paragraph, after failure to 
pay the tax herein levied for any preceding quarter 
during which he or it was liable to tax, shall be 
guilty of a misdemeanor. It is hereby enacted that 
all of said taxes received or collected under this 
paragraph shall be paid into the State treasury. It 
is also enacted that any person or company pay- 
ing the tax herein levied shall be relieved of any 
and all occupation tax or license fees to the State 
under existing laws on or for the kind of business 
specified in this paragraph. Provided, however, 
that said tax shall be collected upon said syrup or 
corbonated water only once, and shall be paid by 
the wholesale dealer in said syrup if sold within 
the confines of this State by such wholesale dealer; 
and if said syrup or carbonated water shall be 
purchased by the retail dealer without the limits 
of this State and shall be shipped to a point with- 
in the limits of this State, the same shall be taxed 
in the hands of such retail dealer, and for the pur- 
ooses of this tax the price paid for such syrup 
or carbonated water shall determine the receipts 
for the same. 

§ 993 (271). Swimming-Pools. — Upon each and 
every person, firm, or corporation operating a 
swimming-pool where admission fees are charged, 
or upon persons, firms, or corporations keeping 
and renting bathing-suits for hire, $20.00 in coun- 
ties of over 50,000 population, and $10.00 in coun- 
ties of under the 50,000 population; upon persons,, 
firms, or corporations conducting or operating a 
bathing resort in or near the ocean and ocean and 
gulf front of this State, for hire, the sum of 
$200.00 in each county where such bathing re- 
sort is located. 

§ 993 (272). Toll-Bridges and ferries.— Upon 
all persons or corporations operating ferries, 
$15.00. Upon all persons or corporations operat- 
ing toll-bridges, $100.00, said tax to be paid to the 
tax-collector of the county in which the bridge is 
located or situated. Provided, that this tax shall not 
be required of any ferry or toll-bridge the receipts 
from which do not amount to more than $500.00 
per annum. And provided further, that the pro- 
5] 



§ 993(273) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(283) 



visions of this paragraph shall apply to line 
bridges as well as bridges wholly within the con- 
fines of this State. 

§ 993 (273). Trucks (Gasoline or Oil). — Upon 
each person, firm, or corporation selling oil or gas- 
oline from a wagon or truck, $10.00 for each wag- 
on or truck. 

§ 993(274). Undertakers. — Upon each person, 
firm, or corporation whose business is that of 
burying the dead and charging for same, com- 
monly known as undertakers, in, or within a ra- 
dius of fifteen miles of the corporate or town lim- 
its of cities of more than 50,000 inhabitants, 
$200.00; in or near cities from 10,000 to 50,000 in- 
habitants, $100.00; in or near cities from 5,000 to 
10,000 inhabitants, $50.00; in or near cities or 
towns of from 2,500 to 5,000 inhabitants, $20.00; 
in or near towns of less than 2,500 inhabitants, 
$10.00 for each place of business. 

§ 993 (275). Warehouses (Cotton). — Upon each 
person, firm, or corporation operating a ware- 
house or yard for the storage and handling of cot- 
ten for compensation, license-tax is as follows: 
Where 500 to 5,000 bales are handled in one year, 
$10.00; where 5,000 to 10,000 bales are handled in 
one year, $25.00; where 10,000 to 20,000 bales are 
handled in one year, $50.00; where 20,000 to 30,000 
bales are handled in one year, $100.00; where more 
than 30,000 bales are handled in one year, $200.00. 

§ 993 (276). Warehouse (Merchandise, etc). — 

Upon each person, firm, or corporation operating 
a warehouse or yard for storage of goods, wares, 
or merchandise and farm products other than cot- 
ten, and charging for the same, $25.00. Provided, 
that any warehouse that pays taxes as provided 
in section 993 (275) shall not be subject to the 
tax required by this paragraph. 

§ 993 (277). Wood dealers. — Any person, firm, 
or corporation dealing in wood shall pay a tax of 
$10.00 for each place of business. 

§ 993 (278). Plumbing, heating, steam-fitting 
and tinning contractors — Upon every plumbing, 
heating, steam-fitting and tinning contractor, in 
counties having a city with a population over 
50,000 the sum of $2i5.0O; in counties havting a 
city with a population less than 50,000 and over 
15,000, the sum of $15.00; in counties having a 
city or towns less than 15,000 the sum of $10.00. 

§ 993 (279). Malt syrups. — Upon all persons 
and companies carrying on in this State the busi- 
ness of manufacturing or selling, by wholesale or 
retail, any and all malt syrups, as an occupation 
tax for the privilege of carrying on said business, 
an amount payable at the end of each quarter, 
equal to one half of one per cent (^2%) of the 
gross receipts from said business in this State. 
Within three days from the end of each quarter 
of the calendar year each person or company en- 
gaged in said kind of business shall make returns 
under oath to the Comptroller-General of this 
'State, showing the .amount of said gross receipts, 
with a detailed statement of the parties from 
whom said receipts are received. Provided that said 
malt syrups shall not be additionally taxed under 
section 993 (270). 

§ 993 (280). Chain of stores. — Upon every per- 



son, firm, or corporation, owning, operating, main- 
taining, or controlling a chain of stores consisting 
of more than five stores, the sum of $250.00 
for each store in excess of five. "Chain of 
Stores" as used herein shall mean and include 
five or more stores owned, operated, maintained, 
or controlled by the same firm, person, or cor- 
poration in which goods, wares, or merchandise 
of any kind are sold at retail in the State of Geor- 
gia. Provided, that the provisions of this para- 
graph shall apply to wholesale chain-stores as 
well as retail chain-stores, and in no event shall 
be construed to apply to persons, firms, or cor- 
porations engaged in the sale of gasoline, motor 
oils, and kindred lines when not sold in grocery 
stores. That the enforcement of the provisions of 
this section is hereby delegated to the department 
of revenue. 

§ 933(281). Fish and sea food peddlers ; non- 
resident. — Upon each non-resident firm or individ- 
ual engaged in peddling fish, oysters, shrimp, or 
other sea food, ten ($10.00) dollars for each vehi- 
cle operated in each county in the State. 

§ 993 (282). Dogs. — All dogs are hereby made 
personal property, and shall be given in and taxed 
as other property of this State is given in and 
taxed, such tax be enforced by levy and sale as other 
taxes are collected, and not to interfere with the 
imposition and collection of any municipal taxes 
on dogs, whether such dog or dogs be owned by 
the taxpayer, his wife or minor children. 

§ 993 (283). Sewing- Machines. — Upon every 
sewing-machine [company] selling or dealing in 
sewing machines by itself or its agents in this 
State, and all wholesale and retail dealers in sew- 
ing-machines, selling machines manufactured by 
companies that have not paid the tax herein, 
$400.00 for each fiscal year or fraction there- 
of, to be paid to the Comptroller-General at 
the time of commencement of business, and 
said companies or dealers shall furnish the 
Comptroller-General with a list of agents au- 
thorized to sell machines of their manufac- 
ture or under their control, and shall pay to 
said Comptroller-General the sum of $10.00 for 
each of said agents for the fiscal year or frac- 
tional part thereof, for each county in which said 
agents do business for said company. Upon the 
payment of said additional sum the Comptroller- 
General shall issue to each of said agents a 
certificate of authority to transact business in 
this State. Before doing business under this Act, 
all sewing-machine agents shall be required to 
register their names with the ordinaries of those 
counties in which they intend to operate, and ex- 
hibit to said ordinaries their license from the 
Cbmpitrfoller-iGeneral, and to keep such license 
posted on their vehicles, or at their place of busi- 
ness. Wholesale and retail dealers in sewing- 
machines shall be required to pay the tax pro- 
vided herein for each manufacturer of sewing- 
machines sold by them, except where the tax 
required by this Act has been paid by said manu- 
facturer. All unsold sewing-machines belonging 
to sewing-machine companies, dealers, or their 
agents, in possession of said companies, dealers, 
their agents or others, shall be liable to seizure 
and sale for payment of such fees, license, or tax. 



[26] 



§ 993(284) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(286) 



Any person who shall violate the provisions of 
this section shall be guilty of a misdemeanor, 
and on conviction shall be punished as prescribed 
in Section 1065, Volume 2, of the Code of 1910. 
None of the provisions of this section shall apply 
to licensed auctioneers selling second-hand sew- 
ing-machines, or to officers of the law under legal 
process, or to merchants buying and selling ma- 
chines on which a license tax has been paid as 
herein provided, and who keep the machines and 
sell and deliver them at their place of business, 
such sales not being on commission. Provided, 
that if said merchant shall employ an agent or 
agents to deliver or sell the machines, the provi- 
sions of this Act shall apply to said agent or 
agents. 

§ 993 (284). Taxes, how returned— The tax 

provided for in section 993 (291), requires return 
made to the Comptroller-General in accordance 
with the law of Georgia. The tax required by §§ 
993 (172), 993 (173) shall be returned to the re- 
ceiver of tax returns in the county of the residence 
of the person liable to such tax, and shall be 
entered by the receiver upon the digest of taxable 
property. In the case of the tax imposed upon 
foreign corporations by § 993 (212), and the 
tax imposed by § 993 (241) upon manufacturers 
of machinery and implements, upon soft-drink 
syrups by § 993 (270), and upon carbonic acid gas 
by § 993 (200), the return is required to be made 
and the tax paid to the Comptroller-General. The 
tax imposed by § 993 (227) on Insurance Agents 
is required to be paid to the Insurance Commis- 
sioner. The tax imposed upon legislative agents 
by § 993 (230) shall be paid to the Secretary of 
State when each person registers, and he shall not 
be allowed to register until such tax is paid. All 
other taxes enumerated and set forth in § 993 (169) 
to § 993 (281) shall be returned and paid to the tax 
collector of the county where such vocations are 
carried on. Provided, however, that nothing in 
this section shall be construed as changing any 
other provision in this Act as to whom any tax 
shall be paid. 

Editor's Note.— Note that the Act of 1927 from which this 
section is taken refers to paragraph 111 of section 2 of the 
act. But paragraph 110, section 993(281) is the last para- 
graph of said section. 

§ 993 (285). Taxes, how paid.— Be it further 
enacted by the authority aforesaid, that the taxes 
provided for in this Act shall be paid in full for 
the fiscal year for which they are levied; and 
except where otherwise provided, said taxes shall 
be paid to the tax-collectors of the counties where 
such vocations are carried on, at the time of 
commencing to do business. Before any person 
shall be authorized to open up or carry on said 
business, they shall go before the ordinary of 
the county in which they propose to do business 
and register their names, the business they pro- 
pose to engage in, the place where it is to be con- 
ducted; and they shall then proceed to pay the tax 
to the collector, and it shall be the duty of the 
said ordinary to immediately notify the tax-col- 
lector, of such registration, and at the end of each 
quarter to furnish the Comptroller-General with 
a report of such special tax registration in his 
office. Any person failing to register with the 
ordinary or, having registered, failing to pay the 

[2 



special tax as herein required, shall ibe guilty of 
a misdemeanor, and on conviction shall be fined 
not less than double the tax, or ibe imprisoned, as 
prescribed by Section 1065 of Volume 2 of the 
Code of 1910, or both in the discretion of the 
court; one-half of said fine shall be applied to 
the payment of the tax and the other to the 
fund of fines and forfeitures for the use of the 
officers of the court. Provided, however, that 
in all counties of this State where the officers 
of the Superior Court, or city court, are now or 
may hereafter be upon the salary basis, the other 
half of the fine shall be paid into the treasury of 
such counties and shall become the property of 
such counties. 

§ 993 (286). Insurance companies. — (1) All for- 
eign and domestic insurance companies doing 
business in this State shall pay one and one-half 
(1/^2%) P er cent, upon gross premiums received 
by them in this State for the year, with no de- 
ductions for dividends, whether returned in cash 
or allowed in payment or reduction of premiums, 
or for additional insurance; nor shall any deduc- 
tion be allowed for premium abatements of any 
kind or character, or for reinsurance, except com- 
panies doing business in Georgia, or for cash 
surrender values paid, or for losses or expenses of 
any kind, said tax being imposed upon gross pre- 
miums without any deductions whatever except 
for premiums returned on change of rate and 
cancelled policies and on reinsurance as aibove 
provided. Provided, that local organizations 
known as Farmers' Mutual Insurance Companies, 
operating in not more than four counties, shall 
not be subject to this tax. Provided, further, 
that -mutual fire insurance companies chartered by 
this State, which require their members to make 
premium deposits to provide for losses and ex- 
penses, and which premium deposits are used 
wholly for the payment of losses and expenses 
and returned to the policyholders or held to pay 
losses and expenses and as reinsurance reserves, 
shall not be subject to this tax. 

(2) Every insurance company incorporated un- 
der the laws of this State, and doing business on 
the legal-reserve plan, shall ibe required to return 
for taxation all of its real estate as other real 
estate is returned, and all of the personal property 
owned by it shall be ascertained in the following 
manner: From the total value of the assets held 
by the company, both real and personal, shall be 
deducted the assessed value of all real estate owned 
>by the company in this State, the non-taxable 
funds deposited by the company with the State 
Treasurer, and the amount of the reserve or net 
value of the policies required by law to be held 
by the company for its policyholders, and which 
belong to such policyholders; the remainder shall 
be the value of the personal property owned by 
and taxable against such companies. 

(3) That whenever any insurance company do- 
ing business in this State shall make it appear by 
proof to the Insurance Commissioner that one- 
fourth of the total assets are invested in any or 
all of the following securities or property, to wit: 
Bonds of this State or of any county or munici- 
pality of this State, property situated in this State 
and taxable therein, loans secured by liens on real 

n 



§ 993(287) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(288) 



estate situated in this State, or policy loans by 
insurance policies issued by such company on 
lives of persons resident of this State, then the 
premium tax levied by the first paragraph of this 
section shall be abated or reduced to one per 
centum upon the gross receipts of such company , 
and if the amounts so invested by any such com- 
pany shall be as much as three fourths of the 
total assets of such company, then said premium 
tax shall be abated or reduced to three fourths 
of one per centum upon such gross receipts of 
such company. 

§ 993 (287). Manufacturing companies. — Be it 

further enacted by the authority aforesaid, That 
the president, superintendent, or agents of all 
manufacturing and other companies, whether in- 
corporated or not (other than railroad, telegraph, 
telephone, express, sleeping and palace-car com- 
panies, and such other companies as are required 
to make return of the value of their franchise 
to the Comptroller-General under the provisions 
of the Act approved December 17th, 1902, en- 
titled an Act to provide for and require the pay- 
ment of taxes on franchises, and to provide the 
method for the return and payment of said taxes), 
and all persons and companies conducting busi- 
ness enterprises of every nature whatsoever, shall 
return for taxation at its true market value of all 
their real estate to the tax-receiver of the county 
wherein said real estate is located. Provided, 
That if the real estate, upon which said manufac- 
turing or other business enterprise of whatsoever 
nature is carried on, lies on or across the county 
line, or county lines, and in two or more counties, 
said real estate shall be returned to the tax-re- 
ceiver of the county wherein are located the main 
buildings containing the -machinery, or most of the 
main buildings. Provided further, that all per- 
sons, companies, and corporations not excepted 
above, conducting any business enterprise upon 
realty not taxable in the county in which such pei - 
sons reside or the office of the company or corpo- 
ration is located, shall return for taxation their 
stock of merchandise, raw materials, machine^, 
live stock, and all other personalty employed in the 
operation of such business enterprises, together 
with the manufactured goods and all other 
property of such business enterprises and notes 
and accounts made and the money used in 
the prosecution of such business enterprises on 
hand at the time for the estimation of property 
for taxation, including all personalty of whatso- 
ever kind connected with or used in such enter- 
prises in any manner whatsoever, in the county 
in which is taxable the realty wherein such busi- 
ness enterprises are located or carried on. Pro- 
vided further, that the agent in this State of any 
person, firm, or corporation resident without this 
State, w 7 ho shall have on hand and for sale, stor- 
age, or otherwise, a,s such agents, merchandise or 
other property, including money, notes, accounts, 
bonds, stocks, etc., shall return the same for tax- 
ation to the tax-receiver of the county wherein 
the same may be taxed for State and county pur- 
poses as other property in this State is taxed. The 
w r ord "merchandise" shall be held to include 
guano, commercial fertilizer, save and except that 
all canal and slackwater navigation companies shall 
make, through their respective executive officers 

[ 



or stockholders in possession of the same, returns 
to the tax-receiver of each county in which the same 
is located, or through which the same shall pass 
in whole or in part, of the right-of-way, locks, 
and dams, toll-houses, structures, and all other 
real estate owned by or used by the company or 
stockholders thereof. Provided, that this Act 
shall not make subject to taxation any property 
of canal or navigation companies which is not 
subject to taxation by the laws of this State now- 
existing. The president of every manufacturing 
company in this State, and agent, general man- 
ager, or person in possession or charge of the busi- 
ness and property in this State of any non-resi- 
dent persons, firm, or corporation, shall be re- 
quired to answer under oath, in addition to those 
provided by law, the following questions: 

1. What is the true market value of the real 
estate of the company you represent, including 
the buildings thereon? 

2. What is the true market value of your ma- 
chinery of every kind? 

3. What is the true market value of real estate 
not [now?] used in the conduct of the business of 
your company? 

4. What is the true market value of ra w ma- 
terials on hand on the day fixed for return of 
property for taxation? 

5. What is the true market value of manufac- 
tured goods or articles on hand on the day for 
the return of property for taxation, whether at 
your principal office or in the hands of agents, 
commission merchants, or others? 

6. How much money did your company have on 
hand the day fixed for the return of property for 
taxation, whether within or without the State? 

7. State separately the true market value of the 
notes, bonds, and other obligations for money or 
property of every kind on hand on the day fixed 
for the return of property for taxation. And such 
company shall be taxed upon its entire property 
so ascertained, and the Comptroller-General iis 
authorized' to frame and have propounded any 
other questions which in his judgment will pro- 
duce a fuller return. 

§ 993 (288). Railroads; return, to whom made. — 

(1). All railroad companies, street and suburban 
railroads, or sleeping-car companies, or persons 
or companies operating railroads or street-rail- 
roads or suburban railroads or sleeping-cars in 
this State, all express companies, including rail- 
road companies doing express, telephone, or tel- 
egraph business, and all telephone and telegraph 
companies, person or persons doing an express, 
telephone, or telegraph business; all gas, water, 
electric light or power, hydro-electric power, 
steam heat, refrigerated air, dockage or cranage, 
canal, toll-road, toll-bridges, railroad equipment, 
and navigation companies, person or persons do- 
ing a gas, water, electric light or power, hydro- 
electric power, steam heat, refrigerated air, dock- 
age or cranage, canal, toll-road, toll-bridge, rail- 
road equipment, or navigation business, through 
their president, general manager, owner, or agent 
having control of the company's offices in this 
State, shall be required to make annual tax returns 
of all property of said company located in this 
State, to the Comptroller-General; and the laws 

28 ] 



§ 993(288) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(291) 



now in force providing for the taxation of rail- 
roads in this State, shall be applicable to the 
assessments of taxes from said businesses as 
above stated. Provided, that small telephone com- 
panies, or person or persons doing a telephone 
business, whose capital stock or property is of 
less value than ($5,000.00) five thousand dollars, 
shall be required to make returns to the tax-re- 
ceivers of the counties in which such property is 
located, instead of making returns to the Comp- 
troller-General. 

(2). Sleeeping car companies. That each non- 
resident person or company whose sleeping-cars 
are run in this State shall be taxed as follows: 
Ascertain the whole number of miles of railroads 
over which sleeping cars are run, and ascertain the 
entire value of all sleeping cars of such person or 
company, then tax such sleeping cars at the regular 
tax rate imposed upon the property in this State 
in the same proportion to the entire value of such 
sleeping-cars that the length of lines in this State 
over which such cars are run bear to the 
length of lines of all railroads over which such 
sleeping-cars are run. The returns shall be made 
to the Comptroller-General by the president, gen- 
eral agent, agent or person in control of such cars 
in this State. The Comptroller-General shall 
frame such questions as will elicit the informa- 
tion sought, and answers thereto shall be made 
under oath. If the officers above referred to in 
control of said sleeping-cars shall fail or refuse 
to answer, under oath, the questions propounded, 
the Comptroller-General shall obtain the informa- 
tion from such sources as he may, and he shall 
assess a double tax on such sleeping-cars. If the 
taxes herein provided for are not paid, the Comp- 
troller-General shall issue executions against thp 
owners of such cars, which may be levied by the 
sheriffs or any county in this State upon the sleep- 
ing-car or cars of the owners, who have failed to 
pay the taxes. 

(3). Railroad equipment companies. Any per- 
son or persons, copartnership, company, or corpo- 
rations, wherever organized or incorporated, own- 
ing or leasing or furnishing or operating any kind 
of railroad cars except dining, buffet, chair, parlor, 
palace, or sleeping- cars, which cars are operated, 
or leased or hired to be operated, on any railroad 
in this State, shall be deemed an equipment com- 
pany. Every equipment company, as here- 
in defined, shall be required to make re- 
turns to the Comptroller-General, and shall be 
taxed as follows : Ascertain the total number and 
the value of all cars of such equipment company, 
the total car-wheel mileage made by said 
cars in the United States, and the total car- 
wheel mileage in Georgia. Then tax such 
cars at the regular rate imposed upon prop- 
erty of this State in the same proportion to the 
entire value of such cars that the car-wheel 
mileage made in Georgia bears to the entire car- 
wheel mileage of said cars in the United States. 
The returns shall be made to the Comptroller- 
General by the president, general manager, agent, 
or person in control of such cars ; and the Comp- 
troller-General shall frame questions as will elicit 
the information and answers thereto shall be 
made under oath. If the officers above referred 
to in control of said cars shall fail or refuse to 

[2 



answer under oath the questions propounded, the 
'Comptroller-General shall obtain the information 
from such sources as he may, and he shall assess 
a double tax on .such cars. If the taxes herein 
provided are not paid, the Comptroller-General 
shall issue executions against said equipment com- 
pany, which may be levied by the sheriff of any 
county in this State upon any car or cars owned, 
leased, or operated by the company failing to pay 
the tax. 

§ 993 (289). Railroad returns and by whom made. 

—The presidents of all railroad companies doing 
business in this State shall make returns to the 
Comptroller-General in the manner provided by law 
for the taxation of the property or the gross receipts 
or net income of such railroads, and shall pay 
the Comptroller-General the tax to which such 
property or gross receipts or net income may be 
sulbject according to the provisions of this Act 
and the laws now in force relating to the tax on 
railroads; and on failure to make returns or re- 
fusals to pay tax, said company shall be liable to 
all the penalties now provided by law, and the 
Comptroller-General is hereby required, upon fail- 
ure of such companies to make returns, or if made 
and not satisfactory to said officer, to proceed 
against such 'companies as provided in Section 1050 
of the Code of 1910, Volume 2. 

§ 993 (290). Banks.— No tax shall be assessed 
upon the capital of banks or banking associations 
organized under the authority of this State, or the 
United States, located within this State, but the 
shares of the stockholders of the banks or .bank- 
ing associations, whether resident or non-resident 
owners, shall be taxed in the county where the 
bank or banking association are located, and not 
elsewhere, at their full market value, including 
surplus and undivided profits, at the same rate 
provided in this Act for the taxation of other 
property in the hands of private individuals. Pro- 
vided, that nothing in this section contained shall 
be construed to relieve such banks or banking 
associations from the tax oh real estate held or 
owned by them, but they shall return said real 
estate at its true market value in the county where 
located. Provided further, that where real estate 
is fully paid for, the value at which it is returned 
for taxation may be deducted from the market 
value of their shares; and if said real estate is not 
fully paid for, only the value at which the equity 
owned by them therein is returned for taxation 
shall be deducted from the market value of their 
shares. The bank or 'banking associations them- 
selves shall make the returns of the property and 
the shares therein mentioned and pay the taxes 
herein provided. Branch banks shall be taxed on 
the value of the capital employed in their opera- 
tion, in the counties, municipalities, and districts 
in which they are located, and the parent bank 
shall be relieved of taxation to the extent of the 
capital set aside for the exclusive use of such 
branches. 

§ 993 (291). Building and loan associations.— 

Be it further enacted by the authority aforesaid, 
that mutual building and loan associations operat- 
ing only in the county of their charter, and limit- 
ing their loans to members, shall not be assessed 
on their capital loaned to stockholders or members 

9] 



§ 993(292) 



AD VALOREM, SPECIFIC, AND OCCUPATION TAXES 



§ 993(298) 



thereof. All other building and loan associations 
or other association of like character shall ibe 
required to return, to the tax-receiver of the 
county where such associations are located, all 
real and personal property of every kind and char- 
acter belonging to such associations, except the 
real property located in another county shall be 
returned to the tax-receiver of that county. 

§ 993 (292). Return by resident agents^ — Be it 
further enacted by the authority aforesaid, that 
the president and principal agents of all incor- 
porated companies herein mentioned, except such 
as are required to make returns to tax-receivers 
of the counties, shall make returns to the Comp- 
itroller-General under the rules and regulations 
provided by law for such returns and subject to 
the same penalties and modes of procedure for the 
enforcement of taxes from companies or persons 
required by law to make returns to the Comp- 
troller-General. 

§ 993 (293). Duties of tax-collectors, sheriffs, 
etc. — It shall be the duty of the sheriffs, their 
deputies and constables of this State to look care- 
fully after the collection of all taxes that may be 
due the State of Georgia under this Act, or any 
other special taxes due the State of Georgia. It 
shall be the duty of all tax-collectors and sheriffs 
and constables of this State to direct and see 
that all persons, firms, or corporations violating 
this Act or any of the tax Acts of this State shall 
be prosecuted for all violations of the tax laws; 
and every person convicted for a violation of this 
Act or any of the special tax laws of Georgia, 
upon the information of any citizen of this State, 
one fourth of the fine imposed upon any person 
for violation of the tax laws shall, by order of said 
court, be paid to such informant or prosecutor. 

§ 993 (294). "In towns and cities" defined. — 

Whenever in any section or paragraph of this Act 
the words "in towns or cities" occur, the same 
shall be construed to mean "within one mile of 
villages, towns, or cities," unless otherwise speci- 
fied. 

§ 993 (295). Fuel distributors; terms defined — 

The terms used in §§ 993 (295) to 993 (302) shall 
be construed as follows: ''Fuels" shall include 
gasoline, benzol, naptha, and other fuels used in 
internal combustion engines, but shall not include 
any such articles which, under a distillation test 
conducted as prescribed by the bureau of -mines 
of the United States Government for gasoline, 
will show distillation of the first drop at a temper- 
ature of not less than 200 degrees Fahrenheit, and 
shall not include kerosene oil, or the distillates 
commonly known as crude fuel oils. "Kerosene" 
as used in this Act shall include the ordinary 
household petrolem oil used with wick burners 
for illuminating, heating, and cooking purposes. 
"Distributor" shall include any person, associ- 
ation of persons, firm, corporation, and political 
subdivision of this State, (a) That imports or 
causes to be imported, and sells at wholesale or 
retail or otherwise within this State, any of the 
fuels or kerosene as specified above; or (b) That 
imports or causes to be imported, and withdraws 
for use within this State, by himself or others, 
any of such fuels or kerosene from the tank-car 
or other original container or package in which 

[ 



imported into this State; or (o) That manufac- 
turers, refines, produces, or compounds any of 
such fuels or kerosene within this State, and sells 
the same at wholesale or retail or otherwise with- 
in this State for use or consumption within this 
State. 

The term "distributor" shall not include any 
retail dealer in such fuels or kerosene, or opera- 
tor or proprietor of a gasoline filling-station or 
public garage or other place at which such fuels 
are sold, where such dealer or other person pro- 
cures his entire supply thereof from a "distributor" 
as above defined, who has qualified, as such as 
hereinafter provided. Act 1927, p. 104. 

§ 993 (296). Fuel distributors; amount of tax.— 

Each distributor of fuels who engages in such 
business in this State shall pay an occupation tax 
of four cents per gallon, for each and every gal- 
lon of such fuels (1) imported and sold within 
this State, or (2) imported and withdrawn for 
use within this State, or (3) manufactured, re- 
fined, produced, or compounded within this State 
and sold for use or consumption within this 
State, or used and consumed within this State 
by the manufacturer, refiner, producer or com- 
pounder. Nothing in this Act contained shall 
be so construed as to cause double taxation 
on any of the products specified herein. Where 
kerosene or fuels are manufactured or refined 
in this State and shipped out of this State, and are 
brought back into this State and used or con- 
sumed, the respective taxes herein fixed shall be 
paid on such kerosene and fuels. Any manufac- 
turer or refiner in this State may sell to any duly 
licensed distributor under the terms of this Act, 
and require the purchasing distributor to pay the 
tax herein imposed; provided, such manufacturer 
or refiner shall report all such sales to the Comp- 
troller-General not later than the next business 
day after the shipment was made, giving full de- 
tails of the sale, including quantity, the car ini- 
tials and number if a carload shipment, date of 
shipment, and name and address of consignee. 
That the proceeds derived from said tax shall be 
distributed as follows: Two and one-half (2*/0 
cents per gallon to the State-aid fund for use in 
construction on the State aid system of roads, and 
one (l) cent per gallon to the several counties 
of this State, as now provided by law. The x /z 
cent of said gas tax not allocated under the terms 
of this bill is hereby set aside to the public 
schools of said State for an .equalization school 
fund. 

§ 993(297). Fuel distributors; tax on kerosene 
distributors. — Each distributor of kerosene who 
engages in such business in this State shall pay 
an occupation tax of one (1) cent per gallon; the 
proceeds of such tax to foe covered into the gen- 
eral treasury. All of the subsequent regulatory 
provisions of this Act, except the rate of tax, shall 
apply to distributors of kerosene. The (1) cent 
of kerosene oil tax levied under this section is 
hereby set aside to the public schools of said State 
for an equalization school fund. 

§ 993 (298). Fuel distributors; registration. — 

Every such distributor shall register with the 
Comptroller-General of this State on or before 
September 1st, 1927, and on or before the same day 

30] 



§ 893(299) 



ESTATE AND INHERITANCE TAXES 



§ 1041(1) 



of the same month of each succeeding year, giving 
his or its name, place of business, and post-office 
address; and shall obtain from said Comptroller- 
General a license to do business as a distributor 
of motor-fuels and kerosene in this State. The 
Comptroller-General shall keep a well-bound book 
to be used for the purpose of registration as herein 
described. 

§ 993 (299). Fuel distributor; invoices and bills. 

— Be it further enacted .by the authority aforesaid, 
that such distributor shall keep and preserve all 
invoices of bills of fuels and kerosene sold for the 
period of one year, and submit the same to the 
Comptroller-General of this State, whenever re- 
quired by him. 

§ 993 (300). Fuel distributors; monthly reports. 
— All distributors of fuels and kerosene in this 
State shall make a monthly report, to the Comp- 
troller-General of this State, of all fuels and 
kerosene sold or used by them. The first such 
return or report shall be made on or before Octo- 
ber 20, 1927, and shall embrace and include all 
fuels and kerosene sold or used during the month 
of September, 1927, and a similar return or report 
shall be made on or before the 20th of each month 
thereafter, and shall embrace and include all fuels 
and kerosene sold, or used during the immediately 
preceding calendar month. Said report or return 
shall show the number of gallons sold or used, 
and shall be sworn to before an officer of this 
State duly authorized to administer oaths. 

§ 993(301). Payment to Comptroller-General. 
— Each distributor of fuels and kerosene engaged 
in such business in this State shall pay the oc- 
cupation tax of four cents per gallon on fuels and 
one cent per gallon on kerosene, as herein pro- 
vided, to the Comptroller-General of this State. 
The first such payment shall be made on or be- 
fore October 20, 1927, and shall embrace and 
include the tax for all fuels and kerosene sold or 
used during the month of September, 1927; and on 
or before the 20th of each month thereafter he 
shall pay to the Comptroller-General said occupa- 
tion tax on all fuels and kerosene sold or used 
during the immediately preceding calendar month. 

§ 993 (302). Fuel distributors;, bond by distribu- 
tor. — From and after the passage of this Act each 
distributor of motor fuels and kerosene engaged 
in such business in this State shall give a good and 
sufficient indemnifying bond, payable to the 
State of Georgia, in a sum not less than $25,000.00. 
Said bond shall be for the payment of the occu- 
pation tax, the making of the monthly report and 
the annual registration as hereinbefore set forth, 
and for the full, complete and faithful performance 
of all the requirements of this Act. Said bond 
shall be made by a surety company authorized to do 
business in this State, and the cost of same shall 
be paid by the distributor. Provided further, 
that when a distributor collects less than $25,000.00 
per month in taxes due the State, his bond shall 
be fixed in the discretion of the Comptroller- 
General of the State. 



ARTICLE 3 
Exemption of Property 
§ 998. (§ 762). Property exempt from taxation. 

Productive Property Taxable. — Under the constitution of 



this state, productive property is taxable, even thoug-h the 
income be used for charitable purposes. Atlanta Masonic 
Temple Co. v. Atlanta, 162 Ga. 244, 133 S. E. 864. 

Illustration — Masonic Lodge. — A masonic company fur- 
nishing various city lodges with quarters, by renting and 
maintaining a building, is not a purely charitable institu- 
tion within the meaning of this section, although the lodges 
occupying the building may be institutions of such character. 
Atlanta Masonic Temple Co. v. Atlanta, 162 Ga. 244, 133 S. 
E. 864. 



ARTICLE 4 
Persons and Property Subject to Taxation. 
§ 1003. Property shall be returned at its value. 

Power under City Charter.— The power to "lay" and "en- 
force the payment" of "such taxes on the inhabitants" of, 
and "those who hold taxable property" in, a city as the 
"corporate authorities may deem expedient," conferred upon 
the city by its charter, is not taken away by this section or 
section 1004. Tietjen v. Mayor, 161 Ga. 125, 129 S. £• 653. 

§ 1004. "Fair market value," meaning of. 

See note under section 1003. 

In General.— This section merely states a rule to be ap- 
plied by municipalities in arriving at the value at which 
taxable property shall be assessed for the purposes of taxa- 
tion, and does not purport to limit investigations or the 
manner or agencies by which the municipal authorities shall 
inquire into such value of taxable property. Tietjen v. 
Mayor, 161 Ga. 125, 131, 129 S. E. 653. 



ARTICLE 7 
County Taxation of Railroads 



§ 1041. Affidavit of illegality.— If any railroad 
company shall dispute the liability to such county 
tax, it may be done by an affidavit of illegality, 
to be made by the president of said railroad, or 
other officer thereof having knowledge of the 
facts, in the same manner as other affidavits 
of illegality are made, and shall be returned for 
trial to the superior court of the county where 
such tax is claimed to be owing and where it is 
sought to be collected, where such cases shall be 
given precedence for trial over all other cases, ex- 
cept tax cases in which the State shall be a party. 
Acts 1889, p. 29; 1916, p. 34; 1927, p. 137. 

Editor's Note.— By the amendment of 1927 other officers 
than the President having knowledge of the facts, may make 
the affidavit prescribed by this section. 



ARTICLE 8 
Estate and Inheritance Taxes 



§ 1041(1). Federal Estate Tax return; duplicate 
to be filed with State Tax Commissioner. — It shall 
be the duty of the legal representative of the es- 
cate of any person who may hereafter die a resident 
of this State, and whose estate is subject to the 
payment of a Federal Estate Tax, to file a dupli- 
cate of the return wihich he is required to make 
to the Federal authorities, for the purpose of 
having the estate taxes determined, with the State 
Tax Commissioner. When such duplicate is filed 
with the said official, he shall compute the amount 
that would be due upon said return as Federal 
Estate Taxes under the Act of Congress relating 
to the levy and collection of Federal Estate Taxes 
upon the property of said estate taxable in Geor- 



[31] 



§ 1041(2) 



ESTATE AND INHERITANCE TAXES 



§ 1041(21) 



gia, and assess against said estate as State inherit- 
ance taxes eighty per centum of the amount 
found to be due for Federal Estate Taxes. Pro- 
vided, that if after the filing of a duplicate return 
and the assessment of the State inheritance taxes 
the Federal authorities shall increase or decrease 
the amount of the Federal Estate tax, an amended 
return shall be filed with the State Tax Commis- 
sioner, showing all changes made in the original 
return and the amount of increase or decrease in 
the Federal Estate tax and such official shall 
assess against said estate 80 per cent of the addi- 
tional amount found to be due for Federal Estate 
tax. In the event of a decrease in the Federal 
Estate tax, the State shall refund to said estate 
its proportion of said decrease. Acts 1925, p. 
63; Ex. Sess. 1926, p. 15, 16; 1927, p. 103. 

Editor's Note. — Supplemental to the Editor's Note under 
this section in the Code of 1926, the court pointed out in 
McAlpin v. Davant, 163 Ga. 309, 136 S. E- 83, that the 
act of 1925 does not specifically mention the act of 1913 as 
amended, and does not expressly repeal that law. 

The act of 1925 operates only in the future, and does not 
conflict with the pre-existing act of 1913 as amended, in so 
far as that law imposed an inheritance tax upon estates 
left by decedents who died prior to passage of the act. 
Consequently the act of 1925 does not authorize the assess- 
ment and collection of the inheritance tax therein provided 
for from estates that were left by decedents who died prior 
to the passage of the act. McAlpin v. Davant, 163 Ga. 309. 
136 S. E. 83. 

The amendment of 1926 inserted the word "hereafter" near 
the beginning of the section, and raised the percentage of the 
state inheritance taxes from 25% to 80% of the amount of 
the Federal Estate Taxes. Subsequently, the amendment of 
1927 added the proviso, with all that follows it, to the end of 
the section. 

Assessment of Estates Left Prior to 1925. — Where there 
was no assessment or collection of any inheritance tax upon 
such estate prior to the passage of the act of 1925, the es- 
tate was subject to have an inheritance tax assessed and 
collected therefrom under the act of 1913 as amended, un- 
affected by the passage of the act of 1925, and was not sub- 
ject to a tax under the act of 1925. McAlpin v. Davant, 163 
Ga. 309, 136 S. E- 83. 

§ 1041(2). Duties of County Ordinaries. — When 
the amount of the of the inheritance taxes to be 
paid by any estate has been determined, as pro- 
vided for in § 1041(1), it shall be the duty of said 
State official to certify the same to the Ordinary 
of the county where said estate is being adminis- 
tered, who shall enter the same upon the minutes 
of his Court, and notify the executor or adminis- 
trator of the amount found to be due, which shall 
be a charge against the estate and not the several 
distributive shares. The ordinary shall receive for 
his services the sum of $3.00 to be taxed as a 
part of the cost of administration. The tax as- 
sessed under the terms of this Act shall be paid 
direct to the Comptroller-General. Acts 1925, p. 
63; 19127, p. 104. 

Editor's Note. — By the amendment of 1927, the provision as 
to the compensation for the services of the ordinary was in- 
serted; and the tax assessed was made payable to the comp- 
troller general instead of to the county tax collector. 

Note that while the act of 1927 purports to amend section 
2 and 4 of the act of 1926 it is obvious that 1925 was inserted — 
Query as to constitutionality. 

§ 1041(4). Failure to pay; executions. — When- 
ever the legal representative of any estate taxable 
under this Act fails to pay the amount assessed 
against said estate, within six months after notice 
from proper authority as to the amount, to be 
paid it shall be the duty of the Comptroller- 
General to issue execution for the amount of such 
tax, against said estate, which execution shall be 



enforced by levy and sale. Acts 1925, p. 63; 192 i, 
p. 104. 

Editor's Note. — The provision as to the enforcement of the 
execution was added, and the duty formally resting upon the 
county collector was imposed upon the comptroller general, 
by the amendment of 1927. See Editor's Note to § 1041(2). 

§ 1041(17). Tax on transfer of property of non- 
resident decedent. — A tax of two per centum of 
its actual value is hereby imposed upon the trans- 
fer of the following property of a non-resident 
decedent: 

a. Real or personal property or any interest 
therein within this State. 

b. Shares of stock or registered or coupon bondis 
or certificates of interest of corporations organ- 
ized under the laws of this State, or of national 
banking associations located in this State, or joint 
stock companies or associations organized under 
laws of this State. 

c. Such tax shall not apply to bonds of this 
State or any of its subdivisions, or on money de- 
posited in a bank, trust company or other simi- 
lar institution in this State, if such deposit is 
owned by a non-resident decedent. Acts 1927, p. 
101. 

§ 1041(18). Valuation, how made. — The vaiue 
of any property taxable under -the provisions of 
this Act and the amount of tax imposed thereon 
shall be determined by the State Tax Commis- 
sioner, who shall give notice and an opportunity 
to 'be heard to the transferor, administrator, trus- 
tee, or other person liable for the payment there- 
of. The tax shall be imposed upon the transfer 
of the property situated within this State, and not 
upon the persons to whom the property is trans- 
ferred. No deduction shall be allowed from the 
value of any property taxable under this Act, 
except an incumbrance upon real property in this 
State or personal property held within this State 
as collateral or security for a loan. 

§ 1041(19). Time for payments; discount inter- 
est. — All taxes imposed by this Act shall be 
due and payable at the time of the transfer, and 
shall be paid to the Comptroller-General of the 
State. If such tax is paid within six months of 
the death of the decedent a discount of five per 
centum shall be allowed and deducted therefrom. If 
such tax is not paid within eighteen months from 
date of death, interest shall be charged and col- 
lected at the rate of ten per centum from the date 
of death. The tax herein imposed shall be and 
remain a Hen upon the property transferred until 
paid, and the transferor, executor, administrator, 
or trustee of the estate shall be personally liable 
for such tax. 

§ 1041(20). Authority to prescribe rules and 
forms. — The State Tax Commissioner, with the 
approval of the Comptroller-General, shall have 
the power to prescribe such rules and regulations 
and forms not inconsistent with the terms of this 
Act as may be necessary to carry out the provi- 
sions of this Act. 

§ 1041(21). Exemption. — The tax imposed by 
this Act on personal property (except tangible 
personal property having an actual situs in this 
State) shall not be payable if the laws of the State 
of residence of the descendent at the time of hi? 

2] 



§ 1105 



TAX COLLECTORS 



§ 1225 



death exempted residents of this State from trans- 
fer taxes or death taxes on such property. 



CHAPTER 2 
Taxes, How Returned and Collected 



ARTICLE 2 
Returns to Receiver of Tax Returns 



SECTION 9 

Double Tax, When Collected 

§ 1105. (§ 847). Defaulters to be doubly taxed. 

Land Assessed for Owner. — Where the owner of land fails 
to return it for taxation, under the authority of this sec- 
tion it may be assessed for him. Wiley v. Martin, 163 Ga. 
381, 382, 136 S. E- 151. 

§ 1106. (§ 848). Property not returned to be 
doubly taxed. 

Assessed as Unreturned Property. — If the owner of land 
fails to return it for taxation, and if the owner is unknown, 
under the authority of this section it is to be assessed as 
unreturned property. Wiley v. Martin, 163 Ga. 381, 382, 136 
S. E. 151. 



SECTION 15 
Colored Taxpayers' Returns 
§ 1116(11). Meeting of board; duties. 

Effect of Failure to Give Notice. — It is proper to direct a 
verdict for the plaintiffs in an action to enjoin the collection 
of taxes where the returns of the plaintiffs were raised 
without giving the required notice, the plaintiff tendering 
the amount admitted due. Smith v. Shackelford, 163 Ga. 
835, 137 S. E- 255. 

Abandonment of Demand for Arbitration. — Where the 
contestant and his arbitrator fail to appear at the place and 
time fixed for the arbitration the demand for arbitration 
will be considered as abandoned. Rogers v. Hamby, 163 
Ga. 771, 137 S. E. 231. 

Who May Be Arbitrators. — As to the effect of not object- 
ing to a third arbitrator known by the contestant to be re- 
lated to the tax collector, see Rogers v. Hamby, 163 Ga. 
771, 137 S. E. 231. 



ARTICLE 5 
Tax Fi Fas. and Sales 



SECTION 1 
Lien of Tax Fi. Fas. 
§ 1140. (§ 883). Taxes to be first paid. 

When Lein Takes Effect. — Property returned or held at 
the time of giving in is subject to the lien of the State, and 
can not be divested by sale. Bibb National Bank v. Colson, 
162 Ga. 471, 473, 134 S. E. 85. 



SECTION 3 
Transfer of Tax Fi. Fas. 
§ 1145. (§ 888). Transfer of tax fi. fas. 

Recordation— As to Defendant.— The ground that the 
transfer of a tax fi. fa. to its present owner was not entered 
of record as provided for by this section is without merit, 
since such recording is not necessary to make it binding on 
the property of the taxpayer; nor is such recording neces- 
sary to preserve its priority, except as to subsequent bona 
fide purchasers for value. Eewis v. Moultrie Bkg. Co., 36 
Ga. App. 347, 136 S. E. 554. 

Ga— 2 



SECTION 4 
Dormancy of Tax Fi Fas 
§ 1147. (§ 890). Tax fi. fa. dormant, when. 

No Contractual Lien to Prevent Bar. — In cases of tax fi. 
fas. there is no contractual lien, fixing a period of limitation 
different from that provided by the statute, to fall back on, 
so as to prevent the bar of the dormant-judgment act. 
Eewis v. Moultrie Bkg. Co., 36 Ga. App. 347, 350, 136 S. E- 
554. 



SECTION 15 
Redemption of Property Sold for Taxes 

§ 1169. Land sold may be redeemed. 

The Premium. — This section and section 1173 show that 
the legislature had in mind a difference between interest 
at a stated rate per annum and a premium in the form of 
a lump sum to be paid within the time in which the differ- 
ent classes of property could be redeemed, and that it so 
declared. Reynolds v. Bickers-Goodwin Co., 161 Ga. 378, 
379, 131 S. E- 55. Section 1173 specifically states that the 
interest shall be at a stated rate per annum, the absence 
of such a provision in this section negatives the assumption 
that payment should be in the same manner. Id. 

Same — Time of Payment. — The premium provided for 
means payment of ten per cent in addition to the amount 
of purchase-money, without regard to the time elapsing 
between the sale and the redemption. Reynolds v. Bickers- 
Goodwin Co., 161 Ga. 378, 131 S. E. 55. 

Execution to Meet Interest, (Principal, or Cost of Drain- 
ing. — The right of redemption is not given where land is 
sold under execution issued for an assessment to meet in- 
terest or principal, or the cost of draining the land ,in a 
drainage district. Sigmon-Reinhardt Co. v. Atkins Nat. 
Bank, 163 Ga. 136, 137, 135 S. E- 720. 

§ 1172. Quitclaim deed by purchaser. 

Execution to Pay Interest, Principal, or Costs of Drain- 
ing. — Where land is sold under execution issued for an as- 
sessment to meet interest, principal, or costs of draining 
the land in a drainage district, the vendee will not be re- 
quired to execute and deliver a quitclaim deed, as provided 
in this section. Sigmon-Reinhardt Co. v. Atkins Nat. 
Bank, 163 Ga. 136, 135 S. E. 720. 



§ 1173. (§ 910). How redeemed. 



See notes to section 1169. 



CHAPTER 3 
Delinquent Tax Receivers and Collectors 



ARTICLE 2 

Execution Against Defaulting Receiver or Collec- 
tor or Sureties 

§ 1187. (§ 924.) Comptroller to issue executions 
vs. collector and sureties on default. 

Quoted and applied in State v. Bank, 162 Ga. 292, 133 S. 
E- 248. 

§ 1190. (§ 927.) Lien on property of principles 
and sureties, bound. 

Superiority of State's Lien. — The State's lien is superior 
to a security deed for money borrowed by the collector to 
pay a prior shortage. State v. Bank, 162 Ga. 292, 133 S. E- 
248. 

Subrogation of Securities. — A bank, lending money to a 
collector to cover a shortage, is not entitled to a superior 
lien on account of subrogation to the rights of the State. 
State v. Bank, 162 N. C. 292, 133 S. E- 248. 



ARTICLE 5 
Tax Collectors 



SECTION 7 
Collector, When Ex Officio Sheriff 
§ 1225. Collector ex-officio sheriff in some coun- 



[33] 



§ 1227(1) 



TAX COLLECTORS 



§ 1227(5) 



ties. — The tax-collectors of counties which contain 
a population of one hundred and twenty-five 
thousand or more and the tax-collectors of coun- 
ties having a population of not less than 26,133 
and not more than 26,200, according to the census 
of 1920 or any future census, and the tax-collec- 
tors of counties which contain within their bor- 
ders the whole or a part of a city having a popu- 
lation of two hundred thousand or more, accord- 
ing to the census of 1920 or any future census, 
shall be ex-officio sheriffs in so far as to enable 
them to collect the taxes due the State and county, 
by levy and sale under tax executions; and said 
tax-collectors shall not turn over any tax execu- 
tions to the sheriffs or to any other levying offi- 
cials of the said State, except when it may be- 
come necessary, for the purpose of enforcing the 
same, to send said executions to any other county 
or counties than that in which issued; but said 
tax-collectors, by virtue of their office, shall have 
full power and authority to levy all tax executions 
heretofore or hereafter to be issued by them in 
their respective counties; and the compensation 
of said tax-collectors shall not exceed fifty cents 
for issuing each fi. fa., and for levying and selling 
the same fees as are now allowed by law to the 
sheriffs of said State; and said tax-collectors shall 
have full power to bring property to sale, and 
sales made by them be valid, and shall convey the 
title to property thus sold as fully and completely 
as if made by the sheriffs of said counties. Acts 
1890-1, p. 101; 1915, p. 11; 1927, p. 138, 139. 

Editor's Note.— Prior to the amendment of 1927, the tax 
collectors of only the counties which contain a population of 
one hundred and twenty five thousand or more, fell within 
the scope of this section. 

Note that this section is twice amended by the Acts of 
1927 — the latter amendment taking no account of the former. 

Judicial Notice of Population. — The courts will take judi- 
cial cognizance of the population of counties for the purpose 
of determining whether this section is applicable therein. 
Fidelity, etc., Co. v. Smith, 35 Ga. App. 744, 746, 134 S. E. 
801, citing the following authorities: L,eadbetter v. Price, 
102 Ore. 159 (199 Pac. 633, 17 A. L. R. 218); Standard Oil 
Co. v. Kearney, 106 Neb. 558 (18 A. L. R. 95, 184 N. W. 
109); 15 R. C. L. 1129. 

§ 1227(1). Counties with populations of 7,320. 

— All tax-collectors of such counties of the State 
of Georgia as have a population of not less than 
7,320, nor more than 7,330, according to the cen- 
sus of the United States for the year 1924, shall 
be ex-officio sheriffs of their respective counties, 
in so far only as to give them full power and 
authority to collect all taxes due the State of 
Georgia in their respective counties, and all other 
taxes required to be collected by them, by levy 
and sale under tax executions, and that said tax- 
collectors be vested with full power and authority 
to levy any and all fi. fas. issued by them, whether 
prior to or subsequent to the passage of this Act, 
and that the compensation to be received by said 
tax-collectors for rendering services as such ex- 
officio sheriffs shall be the same as that now 
allowed by law to sheriffs for the same or like 
services; that said tax-collectors shall have the 
powers of sheriffs to bring all property to sale 
that is subject to said fi. fas., and shall have full 
authority to execute any and all necessary con- 
veyances or bills of sale or other instruments re- 
quired by law of sheriffs to be given to the pur- 
chasers at public sales, and shall have authority to 
do and perform all other Acts and to exercise all 
other powers vested in sheriffs with respect to the 



levy of said fi. fas., the sale of property thereun- 
der, and the execution of conveyances therefor, 
or with respect to any other feature connected 
with the collection of said fi. fas. by levy and 
sale, and all sales made by them as ex-officio shall 
pass title and be as valid in all respects as if made 
by the sheriffs of the respective counties. Acts 
1927, p. 335. 

§ 1227(2). Same — Advertisements of sales. — In 
the levy of said fi. fas., and in the making of the 
sales thereunder, in the advertisement of said 
sales, said tax-collectors shall in all respects con- 
form to the provision of the law governing such 
sales by the sheriffs of this State, and all adver- 
tisements of sales required to be inserted in a 
newspaper shall be published in the newspaper in 
which the sheriff's advertisements for said county 
are published, and shall be published for the same 
period of time. 

§ 1227(3). Same — Deputies. — Said tax-collec- 
tors shall have powers to appoint one or more 
deputies under the provision of this Act, and all 
deputies thus appointed shall be vested with all 
of the powers herein granted unto the tax-collec- 
tors, and said tax-collectors shall be responsible 
for the Acts of their said deputies as sheriffs are 
liable for the Acts of their deputies, and the com- 
pensation of such deputies shall be paid by said 
tax-collector. 

§ 1227(4). Counties with population of 15,160. 

— All tax-collectors of such counties of the State 
of Georgia as have a population of not less than 
15,150 and not more than 15,160, according to the 
census of the United States for the year 1920. 
shall be ex-officio sheriffs of their respective coun- 
ties in so far only as to give them full power and 
authority to collect all taxes due the State of 
Georgia in their respective counties, and all other 
taxes required to be collected by them, by levy 
and sale under tax executions, and that said tax- 
collectors be vested with full power and authority 
to levy any and all fi. fas. issued by them, whether 
prior to or subsequent to the passage of this Act,, 
and that the compensation to be received by said 
tax-collectors for rendering services as such ex- 
officio sheriffs shall be the same as that now al- 
lowed by law to sheriffs for the same or like serv- 
ices; that said tax-collectors shall have the powers 
of sheriffs to bring all property to sale that is sub- 
ject to said fi. fas., and shall have full authority 
to execute any and all necessary conveyances or 
bills of sale or other instruments required by law 
of sheriffs to be given to the purchasers at pub- 
lic sales, and shall have authority to do and per- 
form all other Acts and to exercise all other 
powers vested in sheriffs with respect to the levy 
of said fi. fas., the sale of property thereunder, 
and the execution of conveyances therefor, or 
with respect to any other feature connected with 
the collection of said fi. fas., by levy and sale, and 
all sales made by them as ex-officio sheriffs shall 
pass title and be as valid in all respects as if made 
by the sheriffs of the respective counties. Acts 
1927, p. 337. 

§ 1227(5). Advertisements of sales. — In the 

levy of said fi. fas., and in the making of the sales 
thereunder, in the advertisement of said sales, said 
tax-collectors shall in all respects conform to the 
provisions of the law governing such sales by the 
sheriffs of this State, and all advertisements of 



[34] 



§ 1227(6) 



STATE DEPOSITORIES 



§ 1249 



sales required to be inserted in a newspaper shall 
be published in the newspaper in which the sher- 
iff's advertisements for said county are published, 
and shall be published for the same period of 
time. 

§ 1227(6). Same — Deputies. — Said tax-collec- 
tors shall have power to appoint one or more 
deputies under the provision of this Act, and all 
deputies thus appointed shall be vested with all of 
the powers herein granted unto the tax-collec- 
tors, and said tax-collectors shall be responsible 
for the Acts of their said deputies as sheriffs are 
liable for the Acts of their deputies, and the com- 
pensation of such deputies shall be paid by the 
said tax-collectors. 



CHAPTER 4A 
Payment of Revenue into Treasury 

§ 1248(1). Money collected by departments, 
etc., for maintenance, to be paid into State treas- 
ury. — It shall be the duty of every department, 
commission, bureau, and other branch or agency 
of the government of this State, and of every offi- 
cial head of every department, commission, bu- 
reau, and other branch or agency of the govern- 
ment of this State created by special Act, the 
support and maintenance of which has been pro- 
vided by special Act and not by direct appropri- 
ations of the General Assembly, to collect and 
forthwith to pay into the State treasury all 
moneys, fees, commissions, penalties, or other 
charges which they are authorized by law to col- 
lect for the support and maintenance of such de- 
partment, commission, bureau, or other branch 
or agency of the State Government. Acts 1927, 
p. 311. 

§ 1248(2). Expenses of maintenance to be paid 
from treasury. — The costs and expenses of the 
maintenance and support of every department, 
commission, bureau, and other branch or agency 
of the State government shall be paid out of funds 
in the State treasury by warrant of the Governor 
drawn on appropriations duly made by the Gen- 
eral Assembly. 

§ 1248(3). Exceptions. — The provisions of this 
Act shall not apply to boards and fees col- 
lected by the educational institutions of this State; 
and such funds as may be derived from sale of 
farm products, nor funds collected from sale of 
farm produce equipment or other material de- 
rived from the expenditure of Federal research 
funds, nor to funds received by the Health De- 
partment for sale of medical supplies, nor fees 
received by health institutions, nor to gifts, dona- 
tions and internal income received by said educa- 
tional institutions; nor shall the provisions of 
this Act apply to the Court of Appeals or Su- 
preme Court. 

§ 1248(4). Exception of funds collected to 
match Federal aid funds. — Wherever by Act of 
Congress conditions have been or may be pre- 
scribed for matching Federal aid by State funds, 
and such conditions are in conflict with the pro- 
visions of this Act, then the department or bu- 



reau or agency of this State having to do with 
such Federal aid and collecting funds with which 
to match such Federal aid may and it is hereby 
authorized to withhold from depositing in the 
Treasury an amount sufficient for matching 
such Federal aid; but all other funds belonging 
to the State collected by such department, bureau, 
or agency of the State shall be paid into the State 
Treasury, as hereinbefore provided. 

§ 1248(5). Time of payment to treasury. — It 

shall be and it is hereby made the duty of each 
and every official head described in section 
1248(1) to pay over and to deposit in the State 
Treasury, on or before January 1, 1928, all sums 
remaining in their hands, collected before said 
date, and remaining undisbursed under existing 
laws. 

§ 1248(6). Appropriation or allocation of cer- 
tain funds not affected. — Nothing in this Act 
shall be construed to affect the appropriation or 
allocation of the motor-vehicle fees and licenses 
and pro rata of gasoline taxes to the State High- 
way Department; nor shall it be construed to 
affect the appropriation or allocation of the pro 
rata of gasoline taxes to the counties of this 
State; nor shall it be construed to affect the ap- 
propriation or allocation of the proceeds of the 
cigar and cigarette taxes to the payment of pen- 
sions. Nor shall this Act be construed to affect 
either the appropriation and allocation of the pro- 
ceeds of the tax on lumber dealer or dealers in other 
forest products to the State forestry fund, or the 
allocation of the proceeds of fees and penalties to 
State game and fish protection fund; and pro- 
vided further, that as to those departments, 
branches, agencies, commissions, and bureaus of 
State government who under the law can only 
assess a sufficient amount of fees, licenses, penal- 
ties, etc., to support such department, commission, 
board, bureau, agency, or branch of government, 
all assessments levied for such support shall be 
the maintenance appropriation of such depart- 
ment, board, bureau, agency, or branch for each 
year. None of the provisions of this section shall 
be construed to exempt or except any of the 
funds, taxes, monies, fees, commissions, penalties, 
or other charges received, collected, or paid into 
any of the agencies named in this section from 
the requirement of section 1248(1) that they 
shall all be paid into the State Treasury. 

§ 1248(7). Penalty for violation of Act.— 

Should the official head of any department, com- 
mission, bureau, or other branch or agency of the 
State government violate any of the provisions 
hereof, he or she shall, upon conviction, be 
deemed guilty of a misdemeanor and punished as 
provided therefor, and in addition thereto shall be 
thereafter ineligible to hold such office. 



CHAPTER 5 
State Depositories 

§ 1249. (§ 982.) State depositories provided for 
in various cities. — Buchanan, Glennville and the 
town of Dexter were added to the list of deposi- 
tories by the Acts of 1927, pp. 140, 141, 142. 



[35] 



§ 1397 



PUBLIC SCHOOL SYSTEM 



§ 1551(98) 



ELEVENTH TITLE 
Education 



CHAPTER l 
The University of Georgia and Its Organization 



ARTICLE 2 
Branches of the University 
§ 1397 (§ 1300). Branches of the University. 

The name of the State Normal School was changed to The 
Georgia State Teacher's College by the acts of 1927, p. 171. 
A college of agricultural and mechanical arts, to be known 
as the Middle Georgia Agricultural and Mechanical Junior 
College was added as a branch by the acts of 1927, p. 161. 



CHAPTER 4 
Public School System 



ARTICLE 5 

County Boards of Education 

§ 1551(84^). Compensation of members in 
certain counties. — Members of the county boards 
of education, in counties having above 200,000 
population according to the last or any future 
United States census, may be paid a salary of fifty 
dollars ($50.00) per month each; and their ac- 
counts for service shall be submitted for approval 
each month to the county superintendent of 
schools, and they shall not receive any other com- 
pensation for said service. Acts 1927, p. 156. 

§ 1551 (89). School terms; schools property; 
separation of races. 

Editor's Note. — The Supreme Court in Dominy v. Stan- 
ley, 162 Ga. 211, 216, 133 S. E. 245, in construing section 
1484 of the Civil Code, which forms that part of this section 
beginning "The said boards are invested with the title" 
etc., and ending with the words "according to the order of 
the board," used the following language: "This section, 
however, confers no authority upon the board of education 
of the county to control or to sell and dispose of the land 
in question, which was given by private parties for a spe- 
cific purpose [i e., a charitable trust]. Moreover, we do 
not think that the doctrine of cy pres can be so extended 
as to allow the trustees, who have no title to this property, 
to sell the same or cut down the timber on the same for 
the purpose of building up an entirely different institution 
in an entirely different neighborhood." 

It will be noticed that in this case the court was constru- 
ing a section of the old law contained in sections 1532-1551 
of the Civil Code, which sections are superseded by sec- 
tion 1551(1) et seq. For a full treatment concerning the 
confusion arising out of construction of the former law 
see Editor's Note under sections 1432-1551, Georgia Code of 
1926. 

Length of Terms. — The county board has power, after hav- 
ing specified the duration of a particular term, to pass a 
resolution, after expiration of six months of such term, 
closing the term prior to the time originally provided for 
expiration of the term. Board v. Thurmond, 162 Ga. 58, 
132 S. E. 427. 

Same — Effect of Promise to Commissioners. — The board of 
commissioners of a county has no power to contract with 
the county board of education as to bind the board of edu- 
cation to operate the schools for any particular time, and the 
board of education will not be bound by any promise to the 
board of county commissioners in regard to the length of 
time it will operate the public schools at any term. Board 
v. Thurmond, 162 Ga. 58, 132 S. E. 427. 

Same — Closing Early to Apply Fund to Prior Indebtedness. 
— On the facts of this case, the board of education did not 
abuse its discretion in closing a term earlier than originally 
planned, and in applying the funds derived from local taxa- 
tion to payment of the debts accumulated during previous 



years for money borrowed to pay teachers and operate the 
schools. Board v. Thurmond, 162 Ga. 58, 132 S. E. 427. 

§ 1551 (96). Consolidation. 

Name of New District. — Where two or more local school 
districts are consolidated, it is not necessary that the word 
"consolidated" appear as a part of the name selected for 
the consolidated district ; and it is proper for a proceeding 
to validate bonds to be conducted in the name of the dis- 
trict as fixed by the proper school authorities. Hawthorne 
v. Turkey Creek School Dist., 162 Ga. 462, 134 S. E. 103. 

§ 1551 (97). Appropriation for consolidated 
schools. — Beginning with the year 1927 the State 
Superintendent of Schools shall set aside $350,- 
000 or so much thereof as may be necessary, and 
for 1928 and the years to follow the State Su- 
perintendent of Schools shall set aside $400,000 or 
so much thereof as may be necessary, from funds 
derived from the poll-tax collected and paid into 
the treasury, to aid in the establishment and 
maintenance of consolidated school in this State. 
When the county board of education shall com- 
bine smaller schools into a standard or approved 
consolidated school with at least four teachers, 
and evidence of this fact is furnished by the 
County School Superintendent and Board of Edu- 
cation to the State Superintendent of Schools, 
and when it is made to appear to the State Super- 
intendent of Schools that aid is needed to support 
such consolidated school, the State Superinten- 
dent of Schools shall be authorized to transmit 
$500.00 annually to the support of such school. 

If in addition the local school authorities pro- 
vide for an approved or standard four-year high 
school, and evidence of this fact is made to ap- 
pear to the State Superintendent of Schools, that 
aid is needed to support said four-year high 
school, the State Superintendent of Schools shali 
be authorized to transmit $1,000.00 annually to 
the support of said school; such funds in both 
cases shall be used by local authorities in the pay- 
ment of salaries of principal and teachers. 

When two or more schools in any county qual- 
ify under this Act, either for the $500.00 aid or 
for the $1,000.00 aid, the State Superintendent of 
Schools shall determine to which one of such 
schools said sums shall be paid; the State Super- 
intendent of Schools shall be governed in his de- 
cision by the extent to which the consolidated 
district has utilized its local ability in building, 
equipping, and supporting its school, and the 
number of children to be reached by the consoli- 
dation, the number of teachers, the qualifications 
of the teachers employed, and the character of 
the work being done by the school. No county 
now receiving, or that may hereafter receive, aid 
for both the consolidated ($500.00) and the high- 
school ($1,000.00) aid shall be eligible to further 
apply for such aid until every county in the State 
has had an opportunity to apply. If those coun- 
ties not receiving both aids fail to qualify, then 
the State Superintendent of Schools is authorized 
t-o extend further aid to those counties receiving 
either or both aids as provided in this bill, and on 
same conditions as set forth above. Acts 1925, p. 
147; 1927, p. 158. 

Editor's Note. — The amendment of 1927 increased the 
amounts to be set aside by the superintendent of schools. 
\bout the middle of the third paragraph, the phrase "the 
'jualification of the teachers employed" was inserted by the 
same amendment. 

§ 1551 (98). Division of school districts. 

Effect of Previous Election When District Divided. — 



[36] 



§ 1551(99) 



BUILDING HOUSES IN LOCAL TAX DISTRICTS 



§ 1551(155) 



Where the county board of education has duly divided one 
school district into two school districts, under the provi- 
sions of the act, act of 1911, (similar to this section) one of 
the districts so created may have an election for local school 
taxation under the statute, although an election for such 
purpose has been held during the same year and failed to 
carry in the old district as constituted before the division. 
Tyson v. Board, 150 Ga. 247, 103 S. IS- 158; Dutton v. Rahn, 
162 Ga. 189, 190, 132 S. E- 756. 

§ 1551 (99). Rearrangement of districts. 

Prerequisites to Calling Election. — Walker v. Hall, 161 Ga. 
460, 131 S. E. 160, approving and following Shields v. Field, 
151 Ga. 465, 107 S. E. 44. 

Interference by Equity to Enjoin Proceeding. — A court of 
equity will not enjoin a consolidation of districts by a county 
board which has held an election and declared the result 
to be in favor of the consolidation, because, even if the act 
can be construed to give the right to contest the election 
(there being no express provisions to that effect), it must be 
done before the result is declared. Clark v. Board, 162 Ga. 
439, 134 S. E- 74. 

§ 1551 (100). Transportation of pupils. — When- 
ever the county board of education or local dis- 
trict trustees deem it for the best interest of the 
school, they shall have the right to provide 
means for the transportation of the pupils and 
teachers to and from said school. Acts 1919, pp. 
288, 327; 1927, p. 174. 

Editor's Note. — The local district trustees were brought 
within the scope of this section by the amendment of 1927. 

§ 1551 (104). Term of loan. 

Repayment from Local Tax. — A Board of Education hav- 
ing lawfully incurred debts for money loaned to pay teachers 
and operate the public schools of the county, and such debts 
having accumulated from year to year, it was in the power 
of that board to repay such debts from any funds that could 
lawfully be applied to such purpose, including funds derived 
from the levy of a local tax in the fall of the school year in 
which the debts are paid for operating the schools. Board 
v. Thurmond, 162 Ga. 58, 132 S. E- 427. 



ARTICLE 6. 
Local Taxation for Schools. 
§ 1551 (130). Power to collect taxes. 

Restrictions upon Construction. — This statute, dealing 
with the subject of taxation, is to be interpreted in the 
light of the fundamental restriction upon taxation imposed 
by the constitution of this State, and will not be given a 
construction which violates such constitutional provision. 
Penick v. Foster, 129 Ga. 217, 58 S. E- 773, 12 L. R. A. (N. 
S.) 1159, 12 Ann. Cas. 346; Almand v. Board, 161 Ga. 911, 

131 S. E. 897. 

Levy of Tax upon City. — This statute does not authorize 
county authorities to levy a tax upon taxable property with- 
in an independent school district existing in a city, for the 
support of the public schools of the county under the con- 
trol of the county board of education. Almand v. Board, 
161 Ga. 911, 131 S. E. 897, overruling Hanks v. D'Arcv, 156 
Ga. 55, 118 S. E- 656. 

§ 1551 (133). Election for. school district. 

Validity of Election When District Abolished and Sub- 
stantially Recreated.— In Dutton v. Rain, 162 Ga. 189, 191, 

132 S. E- 756, it was said: "On authority of Stephens v. 
School District, 154 Ga. 275(6), 277 (114 S. E. 197), we hold 
that the action of the county board of education in rescind- 
ing their former action creating the consolidated school dis- 
trict, and at the same meeting creating substantially the 
same district, can not be held by this court, as a matter of 
law, to be a fraud, and that it did not render such election 
void." The court here has reference to an election for a 
school district tax, and was considering the following pro- 
vision taken from § 1535, Civil Code of 1910. "An election 
for the same purpose shall not be held oftener than 
every twelve months." It will be noticed that this section 
contains the same provision. Ed. Note. 

Substantial Compliance with Ballot Sufficient. — See § 126 
and the note thereto. 



§ 1551 (141). Trustees and secretary; powers 
and duties. 

Powers of Trustees — To Borrow Money. — The trustees of 
a local school district are not empowered or authorized by 
law to borrow money. Consequently, where such trustees 
borrowed $2200 from a bank upon the draft of the secretary 
of said board of trustees upon the tax-collector, which was 
accepted by the latter, no liability attached to the local 
school district or to the trustees who succeeded the original 
borrowers. Powell v. Bainbridge State Bank, 161 Ga. 855, 
132 S. E- 60. 



ARTICLE 6A. 
Payment of Teachers. 

§ 1551 (154a). Governor's authority to make 
debt to pay teachers. — Pursuant to the amend- 
ment to Article 7, Section 3, Paragraph 1 of the 
Constitution of this State, authorizing the con- 
traction by or on behalf of the State of a debt in 
an amount of $3,500,000.00 for the purpose of 
paying the public-school teachers of the State, 
the Governor is hereby authorized and empowered 
to execute a note or notes for such amount and 
for such time of payment as the condition of the 
treasury may demand, at any time in his discre- 
tion, for the purpose of paying the public-school 
teachers of the State. The aggregate of said note 
or notes shall not at any time exceed the afore- 
said constitutional limit, and said note or notes 
shall not mature later than February of the year 
succeeding the time of the execution thereof, and 
the principal amount so borrowed shall be repaid 
each year out of the common-school appropria- 
tion, and the interest thereon shall be paid each 
year out of the general funds of the State, ac- 
crued during the year of issue of said notes. 
Said notes shall be signed by the Governor and 
countersigned by the Comptroller-General and 
Secretary of State. Acts 1927, p. 168. 

§ 1551 (154b). Authority to use funds allocated 
for other purposes. — The Governor is further au- 
thorized and empowered, at any time in his dis- 
cretion, to impress, use, and employ for the pay- 
ment of public-school teachers of the State, and 
without payment of interest thereon, any funds in 
the Treasury which may have been allocated for 
any special fund or purpose, so as to obviate the 
necessity of increasing the public debt of the 
State and the payment of interest. Provided, 
however, that it shall be the duty of the Gov- 
ernor, when any fund shall be so used to replace 
said fund or funds by borrowing the same, if nec- 
essary, at such time as will not interfere with the 
expenditure for the purpose appropriated of any 
special or allocated fund or funds so drawn upon 
by the Governor by virtue of the authority 
granted in this Act. 

§ 1554c. Limit of authority. — The Governor 
shall not during any calendar year impress, use, 
or employ any funds in the Treasury allocated or 
belonging to any special fund or purpose in ex- 
cess of the borrowing power of the Governor un- 
der this Act. 



ARTICLE 7. 
Building Houses in Local Tax Districts. 

§ 1551 (155). Election for bonds to build and 
equip school houses. 

What Amounts to Selection of Registered Voters. — Where 

[37] 



§ 1676(14) 



REGISTRATION OF BIRTHS AND DEATHS 



§ 1681(30) 



the tax-collector took the list furnished to him by the 
trustees, went over it, and struck from it such names as 
he thought did not belong there, the voters entitled to reg- 
istration were selected by him, and not by the trustees of 
the school district, the managers of the election, or the 
attorney for the trustees who copied the list at the request 
of the collector. Hawthorne v. Turkey Creek School Dist., 
162 Ga. 462, 467, 134 S. E. 103. 

When Sections 440 et seq. Followed. — This statute re- 
quires that the trustees "shall" follow the law as required 
of county authorities in section 440 et seq. in the issue of such 
bonds. Veal v. Deepstep Consolidated School District, 34 Ga. 
App. 67, 128 S. E. 223. 

Notice of Election.— "As a condition precedent to the hold- 
ing of an election for school bonds a notice of such election must 
be published for thirty days next preceding the day of the 
election, in the newspaper in which the sheriff's advertise- 
ments for the county are published." Burnam v. Rhine Con- 
solidated School District, 35 Ga. App. 110. 132 S. E. 137, fol- 
lowing Scott School Dist. v. Carter, 28 Ga. App. 412, 111 S. 
E. 216. 



TWELFTH TITLE. 
Police and Sanitary Regulations 



CHAPTER 7. 

County Sanitary Regulations, Boards of Health, 

Sanitary Districts, Cemeteries, Hospitals, etc., 

Contracts for Sanitation. 

§ 1676(14). Cemeteries, hospitals, etc., out- 
ride municipalities. 

Necessity of Assignment to Users of Permit. — Where a 
proposed corporation on being organized after the issuance 
of a permit to a private person, acquired the property named 
for the purpose, it was not essential to its use and enjoy- 
ment of the permission to establish such cemetery that the 
person by whom such permission was obtained should make 
an assignment of the same to the corporation. Fairview 
Cemetery Co. v. Wood, 36 Ga. App. 709, 138 S. E. 88. 

Revocation after Expenditures Made. — Where the person 
to whom the permission was granted or one succeeding 
thereto had, on the faith thereof, expended large sums of 
money in the expectation of using and enjoying the per- 
mission so granted, a resolution thereafter adopted by the 
county authorities, for the purpose of rescinding their pre- 
vious action in making the grant, was void and of no effect, 
where its adoption was without a hearing and without any 
sort of notice to the person to be adversely affected, where 
also there was nothing to show any of the conditions of 
such permission had been violated. Fairview Cemeterv Co. 
v. Wood, 36 Ga. App. 709, 138 S. E- 88. 



CHAPTER 8A. 
Registration of Births and Deaths. 

§§ 1681(1) to 1681(26). Superseded by the Acts 
of 1927 p. 353, herein codified as §§ 1681(27) et seq. 

§ 1681 (27). Registration of births and deaths. 

— The State board of health shall have charge of 
the registration of births and deaths in this State, 
shall prepare the necessary instructions, forms, 
and blanks for obtaining and preserving such 
records, and shall procure the faithful registra- 
tion of same in each primary registration district 
as constituted in section 1681 (29) , and in the 
central bureau of vital statistics at the Capitol of 
the State. The said board shall be charged with 
the uniform and thorough enforcement of this 
law throughout the State, and shall from time to 
time recommend any additional legislation that 
may be necessary for this purpose. Acts 1927, p. 
354. 

The proper person to issue a burial permit is the registrar 
of the city or militia district, as the case may be, in which 
the person died or the body was found. Fairview Cemetery 
Co. v. Wood, 36 Ga. App. 709, 719, 138 S. E. 88. 

§ 1681 (28). Bureau of vital statistics; State 



registrar; appointment, qualifications. — The sec- 
retary of the State Board of Health shall have 
general supervision over the central bureau of 
vital statistics, which is hereby authorized to be 
established by said board, and which shall be un- 
der the immediate direction of the State Regis- 
trar of Vital Statistics, whom the State Board of 
Health shall appoint, and who shall be a medical 
practitioner of not less than five years practice in 
his profession,' and a competent vital statistician. 
The term of office of the State Registrar of Vital 
Statistics shall be four years, and he shall con- 
tinue in office until his successor has qualified. A 
successor shall be appointed for the ensuing term 
at least ten days before the expiration of each 
term. Any vacancy occuring in such office dur- 
ing a term shall be filled by appointment for the 
unexpired part of the term. The State Board of 
Health shall provide for such clerical and other 
assistant as may be necessary for the purposes of 
this Act, who shall serve during the pleasure of 
the board. The compensation of the State Regis- 
trar of Vital Statistics and the compensation of 
said assistants shall be paid by the said board out 
of the funds appropriated by the General As- 
sembly for the maintenance of the State Board 
of Health. The custodian of the capitol shall 
provide for the Bureau of Vital Statistics, at the 
State Capitol,' suitable offices, which shall be 
properly equipped with fireproof vaults and filing 
cases for the permanent and safe preservation of 
all official records provided for by this Act. 

§ 1681 (29) Districts for registration. — For the 

purpose of this Act the State shall be divided in- 
to registration districts as follows: Each city, 
each incorporated town, and each militia district 
or part thereof outside of a city or incorporated 
town shall constitute a primary registration dis- 
trict. The State Board of Health may combine 
two or more primary registration districts as one 
district, or may establish additional districts by 
dividing a primary registraton district into two 
or more districts, when necessary to facilitate 
registration. 

§ 1681 (30). Local registrars. — In each city of 
this State the city clerk, and in each incorporated 
town the town clerk, and in each militia district 
or part thereof outside of a city or of an incorpo- 
rated town the justice of the peace therefor, or, 
if there be no justice of the peace, the notary 
public and ex-officio justice of the peace there- 
of, shall be the local registrar of vital statis- 
tics, except where another person has been ap- 
pointed as such registrar by the State board of 
Health, the said board being hereby authorized 
to appoint the local registrars in any and all reg- 
istration districts, in their discretion. Each local 
registrar shall appoint a deputy registrar, who 
shall serve as registrar when the local registrar, 
is not immediately accessible for the purpose 
of registration or the issuance of certificates or 
permits as required by this Act; and should the 
local registrar and his deputy both be absent 
from their registration district, the duties of the 
local registrar of that district may be performed 
by the local registrar of any adjoining district in 
the same county; and in such cases the registrar 
acting in the absence of the local registrar shall 
note on each certificate issued bv him the date of 



[38] 



§ 1681(31) 



REGISTRATION OF BIRTHS AND DEATHS 



§ 1681(33) 



filing, and shall forward the certificate in ten 
days, and in all cases before the third day of the 
following month, to the local registrar in whose 
place he has acted. Any local registrar or deputy 
registrar who, in the judgment of the State Boaru 
of Health, fails to make a proper and complete 
return of births and deaths, or to discharge any 
of his other duties as prescribed by this Act, may 
be summarily removed by said board, and he 
shall be subject to such penalties as are provided 
for such officers under section 303(10) Penal 
Code. 

§ 1681 (31). Burial or removal permit. — The 
body of any person whose death occurs in this 
State, or which shall be found dead therein, shall 
not be interred, deposited in a vault or tomb, cre- 
mated, or otherwise disposed of or removed from 
or into any registration district, or be temporarily 
held pending further disposition more than sev- 
enty-two hours after death, unless a permit for 
burial, removal, or other disposition thereof shall 
have been properly issued by the local registrar 
of the registration district in which the death oc- 
curred or the body was found. And no such 
burial or removal permit shall be issued by the 
registrar until, where practicable, a complete and 
satisfactory certificate of death has been filed 
with him as hereinafter provided; provided, that 
when a dead body is transported from outside -of 
the state into this State or from one registration 
district into another registration district within 
this State, for burial, the transit or removal per- 
mit issued in accordance with the law and health 
regulations of the place where the death occurred 
shall be accepted by the sexton or person in 
charge of the cemetery in lieu of a burial permit 
at the place of burial. 

§ 1681 (32). Stillborn child to be registered 
twice. — A stillborn child shall be registered as a 
birth and also a death, and separate certificates 
of both the birth and the death shall be filed with 
the local registrar, in the usual form and manner, 
the certificate to contain, in the place of the name 
of the child, the word "stillbirth," provided that 
a certificate of birth and a certificate of death 
shall not be required for a child that has not ad- 
vanced to the fifth month of uterogestation. The 
medical certificate of the cause of death shall be 
signed by the attending physician, if any, and 
shall state the cause of death as "stillborn," 
with the cause of stillbirth, if known, whether a 
premature birth, and if born prematurely, the pe- 
riod of uterogestation, in months, if known; and 
the burial or removal permit of the prescribed 
form shall be required. Midwives shall not sign 
certificates of death for stillborn children; but 
such cases, and stillbirths occuring without at- 
tendance of either physician or mid-wife, shall be 
treated as deaths without medical attendance, as 
provided for in section 1681(34). 

§1681(33). Death certificate; contents. — The 
certificate of death shall contain the following 
items, and such other items as are deemed neces- 
sary for legal, social, and sanitary purposes sub- 
served by registration records: (1) Place of 
death, including State, county, incorporated town, 
village, or city. If in a city, the ward, street, and 
house number: if in a hospital or other institu- 
tion, the name of the same to be given instead of 



the street and house number. If in an industrial 
camp, the name of the camp to be given. (2) Full 
name of decedent. If an unnamed child, the sur- 
name preceded by "Unnamed," (3) Sex. (4) 
Color or race; as white, black, mulatto (or other 
Negro descent), Indian, Chinese, Japanese, or 
other. (5) Conjugal relation; as single, married, 
widowed, or divorced. (6) Date of birth, includ- 
ing year, month, and day. (7) Age, in years, 
months, and days. If less than one day, the 
hours or minutes. (8) Occupation. The occupa- 
tion to be reported of any person male or female, 
who had any remunerative employment, with the 
statement of (a) trade, profession, or particular 
kind of work; (b) general nature of industry, 
business, or esta/blishment in which employed (or 
employer). (9) Birthplace, at least State or for- 
eign country, if known. (10) Name of father. (11) 
Birthplace of father, at least State or foreign 
country, if known. (12) Maiden name of mother. 
(13) Birthplace of mother, at least State or for- 
eign country, if known. (14) Signature and ad- 
dress of informant. (15) Official signature of reg- 
istrar, with the date when the certificate was filed 
and registered number. (16) Date of death, year, 
month, and day. (17) Certification as to medical 
attendance on decedent, fact and time of death, 
time last seen alive, and cause of death, with con- 
tributory (secondary) cause of complication, if 
any, and duration of each, and whether attributed 
to dangerous or insanitary conditions or employ- 
ment; signature and address of physician or offi- 
cial making the medical certificate. (18) Length 
of residence (for inmates of hospitals or other in- 
stitutions, transients or recent residents) at place 
of death and in the State, together with the place 
where the disease was contracted, if not at place 
of death, and former or usual residence. (19) 
Place of burial or removal, date of burial. (20) 
Signature of undertaker or person acting as such, 
and post-office address. The personal and sta- 
tistical particulars (items 1 to 13) shall be au- 
thenticated by the signature of the informant, 
who may be any competent person acquainted 
with the facts. The statement of facts relating 
to the disposition of the body shall be signed by 
the undertaker or the person acting as such. The 
medical certificate shall be made and signed by 
the physician, if there was any, last in attendance 
on the deceased, who shall specify the lime 
in attendance, the time he last saw the deceased 
alive, and the hour of the day at which the death 
occurred. And he shall further state the cause of 
the death, so as to show the course of the disease 
or sequence of causes resulting in the death, giv- 
ing first the name of the disease causing death 
(primary cause) and the contributory (secondary) 
cause, if any, and the duration of each. Indefi- 
nite and unsatisfactory terms, denoting only 
symptoms of disease or conditions resulting from 
disease, will not be held sufficient for the issuance 
of a burial or removal permit, and any certificate 
containing only such terms, as defined by the 
State Registrar, shall be returned to the physi- 
cian or person making the medical certificate, for 
correction and more definite statement. Causes 
of deaths which may be the result of either disease 
or violence shall be carefully defined; and if vio- 
lence, the means of injury shall be stated, and 
whether (probably) accidental, suicidal, homi- 



\ 



[39] 



§ 1681(34) 



REGISTRATION OF BIRTHS AND DEATHS 



§ 1681(39) 



cidal. And for the deaths in hospitals or insti- 
tutions, or of non-residents, the physician shall 
supply the information required, under this head 
(item 18), if he is able to do so, and may state 
where, in his opinion, the disease was contracted. 

§ 1681(34). Death without medical attention. — 

In case of any death occurring without medical 
attention, it shall be the duty of the undertaker 
to notify the local registrar of the death, and 
when so notified the registrar shall, prior to the 
issuance of the permit, inform the local health 
officer, if there be such officer in the district 
where the death occurred, and refer the case to 
him for immediate investigation and certification; 
provided, that when the local health officer is not 
a physician, and in such cases only, the registrar 
is authorized to make the certificate and return 
from the statement of relatives or other person 
having adequate knowledge of the facts; provided, 
further, that if the registrar has reason to believe 
that the death may have been due to unlawful act 
or neglect, he shall then refer the case to the cor- 
oner or other proper official for his investigation 
and certification. And the coroner or other proper 
official whose duty it is to hold an inquest on the 
body of any deceased person, and to make the cer- 
tificate of death required for a burial permit, shall 
state in his certificate the name of the disease 
causing the death, or, if from external causes, 
(1) the means of death, and (2) whether (prob- 
ably) accidental, suicidal, or homicidial, and shall 
in any case furnish such information as may be 
required by the State Registrar in order to clas- 
sify the death properly. 

§ 1681(35). Procedure, in obtaining burial per- 
mit. — The undertaker, or the person acting as 
undertaker, shall file the certificate of death with 
the local registrar of the district in which the 
death occurred, and obtain a burial or removal 
permit prior to any disposition of the body. He 
shall obtain the required personal and statistical 
particulars from the person best qualified to sup- 
ply them, over the signature and address of his 
informant. He shall then present the certificate 
to the attending physician, if there was any, or to 
the health officer, or coroner, as directed by the 
local registrar, for the medical certificate of the 
cause of death and other particulars necessary to 
complete the record as specified in sections 1681- 
(33), 1681(34) and he shall then state the facts re- 
quired relative to the date and place of burial or 
removal, over his signature and with his address, 
and present the complete certificate to the local 
registrar in order to obtain a permit for burial, re- 
moval, or other disposition of the body. The un- 
dertaker shall deliver the burial or removal permit 
to the person in charge of the place of burial, be- 
fore interring or otherwise disposing of the body, 
or shall attach the transit permit to the box con- 
taining the corpse when shipped by any trans- 
portation company; said permit to accompany 
the corpse to its destination where, if within the 
State of Georgia, it shall be delivered to the per- 
son in charge of the place of burial. Every per- 
son, firm, or corporation selling a coffin or burial 
casket shall keep a record showing the name of 
the purchaser, and the purchaser's post-office ad- 
dress, and the name of the deceased, which rec- 
ord shall be open to inspection of the State Reg- 
istrar at all times. On the first day of each month 

[ 



the person, firm, or corporation selling coffins or 
burial caskets in this State shall report to the 
State Registrar each sale for the preceding 
month, on a blank provided for that purpose; 
provided, however, that no person, firm, or cor- 
poration selling coffins or burial caskets to deal- 
ers or undertakers only shall be required to keep 
such record, nor shall such report be required 
from the undertakers when they have direct 
charge of the disposition of the dead body. 
Every person, firm, or corporation selling cof- 
fins or burial caskets at retail, and not having 
charge of the body, shall inclose within the casket 
or coffin a notice furnished by the State registrar, 
calling attention to the requirements of the law, 
a blank certificate of death, and the rules and reg- 
ulations of the State Board of Health concerning 
the burial or other disposition of a dead body. 

§ 1631(36). Contents of burial permit. — If the 

interment or other disposition of the body is to 
be made within the State, the wording of the bur- 
ial or removal permit may be limited to a state- 
ment by the registrar, and over his signature, that, 
a satisfactory certificate of death having been filed 
with him as required by law, permission is granted 
to inter, remove, or dispose otherwise of the body, 
stating the name, age, sex, cause of death, and 
other necessary details upon the form prescribed 
by the State Registrar. 

§ 1681(37). Burial without permit prohib- 
ited; indorsement and return of permit. — No 

person in charge of any premises on which in- 
terments are made shall inter or permit the in- 
terment or other disposition of any body unless 
it is accompanied bv a burial, removal, or transit 
permit as herein provided, and every such person 
shall indorse upon the permit the date of the in- 
terment, over his signature, and shall return all 
permits so indorsed to the local registrar of his 
district within ten days from the date of inter- 
ment, or within the time fixed by the local board 
of health. He shall keep a record of all bodies 
interred or otherwise disposed of on the premises 
under his charge, in each case stating the name 
of each deceased person, place of death, date of 
burial or disposal, and name and address of the 
undertaker, which record shall at all times be 
open to official inspection; provided, that the un- 
dertaker or person acting as such, when burying 
a body in a cemetery or burial ground having no 
person in charge, shall sign the burial or removal 
or transit permit giving the date of burial, and 
shall write across the face of the permit the words 
"No person in charge," and file the burial or re- 
moval or transit permit within ten days with the 
registrar of the district in which the cemetery is 
located. 

§ 1681(38). Birth registration.— The birth of 
each and every child born in this State shall be 
registered as hereinafter provided. 

§ 1681(39). Certificate of birth to be filed.— 

Within ten days after the date of each birth, there 
shall be filed with the local registrar of the dis- 
trict in which the birth occurred a certificate of 
such birth, which certificate shall be upon the form 
adopted by the State Registrar, upon advice and 
consent of the State Board of Health, with a view 
of procuring a full and accurate report with re- 
spect to each item of information enumerated in 
section 1681(40). In each case where a phv- 

40] 



§ 1681(40) 



REGISTRATION OF BIRTHS AND DEATHS 



§ 1681(43) 



sician, or midwife, or person acting as a midwife 
was in attendance upon the birth, it shall be the 
duty of such person to file in accordance here- 
with the certificate herein contemplated. In each 
case where there was no physician, or midwife, 
or person acting as midwife, in attendance upon 
the birth, it shall be the duty of the father or 
mother of the child, or the householder or the 
owner of the premises where the birth occurred, 
having knowledge of such birth, or the manager 
or superintendent of the public or private insti- 
tution where the birth occurred, each in the order 
named, within ten days after the date of such 
birth, to report to the local registrar the fact of 
such birth. In such case, and in case the physi- 
cian, or midwife, or person acting as midwife, in 
attendance upon the birth, is unable, by diligent 
inquiry, to obtain any item or items of informa- 
tion contemplated in section 1681(40), it shall 
be the duty of the local registrar to secure 
from the person so reporting, or from any other 
person having the required knowledge, such in- 
formation as will enable him to prepare the cer- 
tificate of birth herein contemplated, and it shall 
be the duty of the person reporting the birth, or 
who may be interrogated in relation thereto, to 
answer correctly and to the best of his knowl- 
edge all questions put to him by the local regis- 
trar which may be calculated to elicit any in- 
formation needed to make a complete record of 
the birth as contemplated by section 1681(40) and it 
shall be the duty of the informant, in any state- 
ment made in accordance herewith, to verify such 
statement by his signature, when requested so to 
do by the local registrar. 

§ 1681(40). Contents of birth certificate.— The 

certificate of birth shall contain the following 
items, and such other items as are deemed nec- 
essary for the legal, social, and sanitary purposes 
subserved by registration records: (1) Place o* 
birth, including State, county, incorporated town, 
village, or city; if in a city, the ward, street, and 
house number; if in a hospital or other institu- 
tion, the name of the same to be given instead 
of the street and house number. (2) Full name 
of child. If the child dies without a name, be- 
fore the certificate is filed, enter the words "died 
unnamed." If the living child has not yet been 
named at the date of filing certificate of birth, 
the space for full name of child is to be left 
blank, to be filed out subsequently by a supple- 
mental report, as hereinafter provided. (3) Sex 
of child. (4) Whether a twin, triplet, or other 
plural birth. A separate certificate shall be re- 
quired for each child in case of plural births. 
(5) For plural births, number of each child in 
order of birth. (6) Whether legitimate or ille- 
gitimate. (7) Date of birth, including year, 
month, and day. (8) Full name of father; pro- 
vided that if the child is illegitimate, the name 
of the putative father shall not be entered with- 
out his consent, but the other particulars relat- 
ing to the putative father (items 9 to 13) may 
be entered if known, otherwise as "unknown." 
(9) Residence of father. (10) Color or race of 
father. (11) Age of father at last birthday, in 
years. (12) Birthplace of father, at least State 
or foreign country if known. (13) Occupation 
of father, occupation to be reported if engaged 
in any remunerative employment, with the state- 



of work: (b) general nature of industry, busi- 
ness, or establishment in which employed (or 
employer). (14) Maiden name of mother. (15) 
Residence of mother. (16) Color or race of 
mother. (17) Age of mother at last birthday, 
in years. (18) Birthplace of mother, at least 
State or foreign country, if known. (19) Oc- 
cupation of mother. The occupation to be re- 
ported if engaged in any remunerative employ- 
ment, with the statement of (a) trade, 
profession, or particular kind of work, (b) Gen- 
eral nature of industry, business, or establish- 
ment in which employed (or employer). (20) 
Number of children born to this mother, in- 
cluding present birth. (21) Number of children 
of this mother, living. (22) The certification 
of the attending physician or midwife as to the 
attendance at birth, including statement of year, 
month, day (as given in item 7), and hour of 
birth, and whether child was born alive or still- 
born. This certification shall be signed by the 
attending physician or midwife, with the date of 
signature and address; if there is no physician 
or midwife in attendance, then by the father or 
mother of the child, householder, owner of the 
premises, or manager or superintendent of pub- 
lic or private institution where the birth occurred, 
or other competent person, whose duty it shall 
be to notify the local registrar of such birth, as 
required by section 1681(39). (23) Exact date 
of filing in office of local registrar, attested 
by his official signature, and registered number 
of birth, as hereinafter provided. 

§ 1681(41). Supplemental report. — When any 
certificate of birth of a living child is presented 
without the statement of the given name, then 
the local registrar shall make out and deliver to 
the parents of the child a special blank for the 
supplemental report of the given name of the 
child, which shall be filled out as directed, and 
returned to the local registrar as soon as the child 
shall have been named. 

§ 1681(42). Registration of midwives. — Every 
midwife shall register his or her name, address, 
and occupation with the local registrar of the 
district in which he or she resides, or may here- 
after establish a residence, such registration to be 
made on or before the first day of February in 
each year, or, if such residence is established 
after that date, then within thirty days after the 
same is established; and shall thereupon be sup- 
plied by the local registrar with a copy of this 
Act, together with such rules and regulations 
as may be prepared by the State registrar rela- 
tive to its enforcement. Within sixty days after 
the close of each calendar year each local regis- 
trar shall make a return to the State Registrar 
of all midwives who have registered in his dis- 
trict. No fee or other compensation shall be 
charged by local registrars to midwives for reg- 
istering their names under this section or mak- 
ing returns thereof to the State Registrar. 

§ 1681(43). Blanks supplied by State regis- 
trar. — The State Registrar shall prepare, print, 
and supply all registrars all blanks and forms 
used in registering, recording, and preserving 
the returns, or in otherwise carrying out the pur- 
poses of this Act, and- shall prepare and issue 
such detailed instructions as may be required to 



ment of (a) trade, profession, or particular kind I procure the uniform observance of its provisions 

[41] 



§ 1681(44) 



REGISTRATION OF BIRTHS AND DEATHS 



§ 1681(45) 



and the maintenance of a perfect system of reg- 
istration; and no other blanks shall be used than 
those supplied by the State Registrar, except 
that in the transportation of dead bodies the 
standard form of permit adopted by the State 
Board of Embalmers may be used. He shall 
carefully examine the certificates received 
monthly from the local registrars; and if any 
such are incomplete or unsatisfactory, he shall 
require such further information to be supplied 
as may be necessary to make the records com- 
plete and satisfactory. And all physicians, 
midwives, informants, or undertakers, and all 
other persons having knowledge of the facts, are 
hereby required to supply, upon a form provided 
by the State Registrar or upon the original cer- 
tificate, such information as they may possess 
regarding any birth or death, upon demand of 
the State registrar, in person, b}^ mail, or through 
the local registrar. No certificate of birth or 
death, after its acceptance for registration by the 
local registrar, and no record made in pursuance 
of this Act shall be altered or changed in any re- 
spect otherwise than by amendments properly 
dated, signed and witnessed. The State Regis- 
trar shall further arrange, bind, and permanently 
preserve the certificates in a systematic manner, 
and shall prepare and maintain a comprehensive 
index of all births and deaths registered, said in- 
dex to be arranged alphabetically, in case of 
deaths, by name of decedents, and in case of 
births, by the names of the fathers, or the 
mothers in the event the name of the father is not 
known. He shall inform all registrars what dis- 
eases are to be considered infectious, or commu- 
nicable, and dangerous to the public health, as de- 
cided by the State Board of Health, in order 
that when deaths occur from such diseases proper 
precautions may be taken to prevent their spread. 
If any cemetery company or association, any 
church or historical society or association, or any 
other company, society, or association, or any in- 
dividual is in possession of any record of births 
and deaths which may be of value in establishing 
the genealogy of any resident of this State, such 
company, society, association, or individual may 
file such record, or a duly authenticated transcript 
thereof, with the State registrar, and it shall be 
the duty of the State Registrar to preserve such 
record or transcript, and to make a record and in- 
dex thereof in such forms as to facilitate the find- 
ing of any information contained therein. Such 
record and index shall be open to inspection by 
the public, subject to such reasonable conditions 
as the State Registrar may prescribe. If any per- 
son desires a transcript of any record filed in ac- 
cordance herewith, the State Registrar shall fur- 
nish the same upon application, together with a 
certificate that it is a true copy of such record as 
filed in his office. 

§ 1681(44). Local registrar's duties; unsatis- 
factory certificate of death. — Each local regis- 
trar shall supply blank forms of certificates to 
such persons as require them. Each local regis- 
trar shall carefully examine each certificate of 
birth or death when presented for record, in or- 
der to ascertain whether or not it has been made 
out in accordance with the provisions of this Act 
and the instructions of the State Registrar. And 
if any certificate of death is incomplete or unsat- 
isfactory, it shall be his duty to call attention to 



the defects in the returns, and to withhold the 
burial or removal permit until such defects are 
corrected. All certificates either of birth or 
death shall be written legibly in durable black 
ink, and no certificate shall be held to be complete 
and correct that does not supply all the items of 
information called for therein, or satisfactorily 
account for their omission. If the certificate of 
death is properly executed and complete, he shall 
then issue a burial or removal or transit permit 
to the undertaker; provided, that in case the 
death occurred from some disease which is held 
by the State Board of Health to be infectious, 
contagious, or communicable or dangerous to the 
public health, no permit for the removal or other 
disposition of the body shall be issued by the reg- 
istrar, except under such conditions as may be 
prescribed by the State Board of Health. If a 
certificate of birth is incomplete, the local regis- 
trar shall immediately notify the informant, and 
require him to supply the missing items of in- 
formation if they can be obtained. He shall num- 
ber consecutively the certificates of birth and 
death, in two separate series, beginning with 
number one for the first birth, and the first death 
of each calendar year, and sign his name as regis- 
trar in attest of the date of filing in his office. 
He shall also make a complete and accurate copy 
of each birth and each death certificate on the 
form provided by the State registrar for that pur- 
pose, and he shall, on or before the tenth day of 
each month, transmit to the State Registrar all 
original certificates registered by him for the pre- 
ceding month, and shall forward to the ordinary 
of the county in which his district is located his 
copy of the same, or, if there be a full-time city 
health officer or a full-time county health officer 
located in his county, he shall forward his copy 
to said health officer instead of to the ordinary. 
And if no birth or no death occurs in any month, 
he shall on the tenth day of the following month 
report that fact to the State Registrar on a card 
provided for that purpose. And all birth and 
death certificates filed with a local registrar when 
the birth or death occurred outside his district 
must be forwarded by him, within ten days, to 
the local registrar of the district in which the 
birth or death occurred. The ordinary or health 
officer, as the case may be, shall file and pre- 
serve in his office all copies of certificates re- 
ceived by him. 

§ 1681(45). Fees. — Each local registrar shall 
be paid a fee of fifty cents for each birth 
certificate and for each death certificate prop- 
erly made out and registered with him, and 
correctly recorded and promptly returned by 
him to the State Registrar as required by this 
Act. And in case no birth or no death certificate 
was registered during a month, the local regis- 
trar shall be paid a fee of tw T enty-five cents for 
each report made by him to that effect, if such re- 
port be made promptly as required by this Act. 
All amounts payable to a local registrar under 
the provisions of this section shall be paid from 
count} r funds by the treasurer of the county in 
which the registration district is located, and the 
State Registrar shall annually, or, in the discretion 
of the State Board of Health, from time to time 
during the year, certify to the treasurers of the 
several counties the number of births and deaths 
properly registered, with the names of the local 



[42] 



§ 1681(46) 



PROFESSIONAL NURSING 



§ 1711(7) 



registrars and the amounts due each at date of 
said certificate; provided that before such fees are 
paid by the county treasurer, the State Regis- 
trar's certificate as to the amount due for such 
fees shall be verified by a certificate of the ordi- 
nary of the county, or city or county health offi- 
cer, as the case may be, to whom copies of the 
original certificates have been furnished by the 
local registrar as provided in section 1681(44). 
The ordinary or the county or city health 
officer, as the case may be, shall be paid a fee of 
ten cents for each copy of birth and each copy of 
death certificate properly filed by him under sec- 
tion 168il(44), said fee to be paid from county 
funds by the county treasurer. 

§ 1681(46). Certified copies.— The State regis- 
trar or ordinary or the county or city health offi- 
cer shall, upon request, supply to any applicant, a 
certified copy of the record of any birth or death 
registered under the provisions of this Act, and 
any such copy of the record of a birth or death, 
when properly certified by the State registrar or 
ordinary or city or county health officer, as the 
case may be, shall be prima facie evidence in all 
courts and places of the facts therein stated, for 
which said applicant shall pay a fee of fifty cents. 
The United States Census Bureau may obtain, 
without expense to the State, transcripts or cer- 
tified copies of births and deaths. 



CHAPTER 9 
Practice of Medicine; How Regulated. 



ARTICLE 1 
Practitioners 
§ 1684. (§ 1479). Practitioners must register. 

Section Repealed.— See rotes to § 1697(6). 



ARTICLE 2 

State Board of Medical Examiners 

§ 1697(5). License required before practice; 
how obtained. 

Constitutionality. — The right to practice medicine is, like 
the right to practice any other profession, a valuable right, 
which is entitled to be protected under the constitution 
and laws of the State. But the State in the exercise of the 
inherent police power of the sovereign may place such re- 
strictions on a licensee as may be necessary for the welfare 
and safety of society. A statute which regulates the right 
to practice medicine, but leaves the field open to all who 
possess the prescribed qualifications, does not abridge the 
privilege or immunities of citizens. Hughes v. State Board, 
162 Ga. 246, 134 S. E- 42. 

This law is not unjustly discriminatory so as to render it 
void. Hughes v. State Board, 162 Ga. 246, 134 S. E. 42. 

A license to practice medicine is not a contract, and gives 
the licensee no right to continue in the practice in the future 
unrestricted, and such license may be revoked for good cause, 
and such revocation alone is not a taking of property with- 
out due process of law. Hughes v. State Board, 162 Ga. 246, 
134 S. E. 42. 

§ 1697(6). Recording of certificate; fee; report. 

Editor's Note.— Section 3 of the act of 1881, embodied in 
section 1684 of the Code, was repealed by implication by the 
act of December 12, 1894 (Ga. E. 1894, p. 85). The act of 
1894 was in turn repealed, either expressly or by implication, 
by the act of 1913 (now this section), and after August 18, 
1913, a physician licensed under the act of 1894 was not re- 
quired to register in accordance with the provisions of the 



act of 1881, and a physician licensed under the act of 1894, 
who had caused his certificate to be recorded as required by 
that act, could recover for services rendered after August 
18, 1913, although the record of his certificate had been made 
prior to August 18, 1913. Friedman v. Mizell, 164 Ga. 1, 137 
S. E. 400; Friedman v. Mizell, 36 Ga. App. 615, 137 S. E. 
864. 

§ 1697(13). Refusal and revocation of licenses. 

Editor's Note — Constitutionality. — This section is not vio- 
lative of the constitution, section 6545, which provides that 
"The right of trial by jury, except where it is otherwise pro- 
vided in this constitution, shall remain inviolate," etc. 
Lewis v. State Board, 162 Ga. 263, 133 S. E- 469. 

Nor is it violative of the due-process clauses of the State 
and Federal constitutions. The section provides for notice 
of the time and place of hearing, for service of the notice, 
for the production of the defendant's evidence, and for mak- 
ing his defense, and also for an appeal from the State Board 
of Medical Examiners to a jury in the superior court; and 
this provides due process of law. Hughes v. State Board, 
162 Ga. 246, 134 S. E- 42. 

The language of this section which declares that a licen- 
tiate's name may be removed from the records in the office 
of any clerk of court in this State, and his license revoked 
upon the ground of "conviction of crime involving moral 
turpitude," is not so vague, uncertain, and indefinite as to 
render the same void. The words "moral turpitude" are 
capable of accurate definition. The legislature may enact 
that one who has been convicted of crime "involving 
moral turpitude" shall no longer practice medicine. Hughes 
v. State Board, 162 Ga. 246, 134 S. E- 42. 

Nor is the provision that "said appeal to be had as in 
other cases now provided by law," void for uncertainty. 
Hughes v. State Board, 162 Ga. 246, 134 S. E. 42. 

Retroactive Effect. — This section is not retroactive as ap- 
plied to the facts of the case at bar. Hughes v. State 
Board, 162 Ga. 246, 134 S. E. 42. 

Prohibiting Advertisements. — Under the police power of 
the State the legislature may prohibit advertisements by 
licensed physicians with reference to "any disease of the 
sexual organs':" and provide for a revocation of the license 
of such practicing physician upon a majority vote of the 
State Board of Medical Examiners, for a violation of the 
above provision of the act. Hughes v. State Board, 162 
Ga. 246, 134 S. E. 42. 

Notice — Specifying Law Alleged to Be Violated. — In pre- 
ferring charges against a practicing physician in order to re- 
voke his license under the act of 1913, as amended by the 
act of 1918, it is not necessary to specify the law under 
which the charges are preferred. Hughes v. State Board, 
162 Ga. 246. 134 S. E. 42. 



CHAPTER 10 
Professional Nursing 



ARTICLE 1 

Board of Examiners 

§§ 1698 to 1711(1).— Repealed by the Acts of 
1927, p. 247, herein codified as §§ 1711(7) et seq. 



ARTICLE 3 

Profession Regulated 

§ 1711(7). Board of Examiners of nurses cre- 
ated; members. — The Board of Examiners of 
Nurses for Georgia is hereby created. It shall be 
composed of five persons to be elected and ap- 
pointed in the following manner: The Georgia 
State Nurses' Association will, within thirty (30) 
days after this Act takes effect, nominate to the 
Governor of this State ten (10) of its members, 
none of whom is in any way connected with any 
training-school for nurses. The said nurses 
must have had at least three (3) years of practice 
in their profession immediately preceding their 
appointment. From this number the Governor 
shall, within thirty (30) days thereafter, appoint 



[43] 



§ 1711(8) 



PROFESSION REGULATED 



§ 1711(12) 



for places on the said board one nurse who shall 
hold office for one (l) year from date of appoint- 
ment; and two (2) shall hold office for two (2) 
years from said date, and two (2) shall hold office 
for three (3) years from said date. All of the said 
appointments shall have the same date; provided 
no two of the nurses so appointed shall have 
graduated from the same training-school. Upon 
the expiration of the term of office of any member 
of said board the Governor of this State shall ap- 
point a successor to fill the said term of office, who 
shall hold office for three (3) years from the date 
of the expiration of, the said term of office. The 
said appointment shall be made from a list of five 
(5) members of the said association, to be fur- 
nished to him by the said association. All vacan- 
cies occurring on this board shall be filled by the 
Governor for the unexpired term from like nom- 
inations furnished to him by the said association 
within thirty (30) days after the vacancy occurs; 
provided, that if the said association fails to make 
the nominations herein required within the time 
here specified, the Governor shall make such ap- 
pointments by nominating such members of the 
nursing profession hereto as may seem to him to 
be proper. Acts 1927, p. 247. 

§ 1711(8). Officers. — The members of this 
State Board of Examiners shall, within thirty 
(30) days after appointment, organize by the elec- 
tion of one of its members to be the president of 
the said board, and another to be the secretary 
and treasurer, who shall hold office for a period of 
one year and until their respective successors are 
elected and have qualified; said officers shall be 
elected by the board annually, and in case of a 
vacancy in either of said offices the board shall, 
within forty (40) days after the vacancy occurs, 
elect one of its number to fill the said office; and 
in the event there is no such election w r ithin the 
time named, the Governor shall appoint a mem- 
ber of said board to fill the vacancy. The secre- 
tary is required to certify to the Governor the 
names of the officers so elected; and in the case 
of a vacancy, this shall likewise be certified by the 
secretary to him; and in the event of a vacancy 
in the office of the secretary, the president of the 
board shall certify the same to him, and shall 
certify the name of the person chosen to fill the 
vacancy in the event the vacancy is filled by the 
board. 

§ 1711(9). Quorum; records; seal; certifi- 
cates. — Three (3) members of said Board of Ex- 
aminers shall constitute a quorum, but no action 
of said board shall be valid unless authorized by 
the affirmative vote ojf three (3) mem'bers 
thereof. The secretary of the board is directed to 
keep a record of the minutes of the meetings of 
said board, and a record of the names of all per- 
sons applying for registration hereunder, and of 
the action of the board thereon, and a register of 
all nurses who have complied with the require- 
ments of this Act, all of which said records shall, 
at all reasonable times, be open to public inspec- 
tion. Said board is authorized to have and use 
an official seal which shall bear the words: 
"State Board of Examiners of Nurses for Geor- 
gia." The certificate of the secretary of said 
board under the seal thereof as to the action or 
non-action of the board shall be accepted in evi- 
dence in the courts of this State as the best evi- 
dence of the minutes of the said board; and like- 



wise the certificate of the secretary under the said 
seal, as to the registration or non-registration of 
any person, shall be accepted as the best evidence 
as to the registration or non-registration of the 
said person under the requirements of this Act. 
The secretary shall issue to all nurses admitted to 
registration hereunder a certificate under the seal 
of the said board, showing that fact. 

§ 1711(10). Examinations; Notice. — It shall be 
the duty of said board to meet for the purpose of 
examining applicants for registration, at least 
once in each year, and oftener should it be 
deemed necessary by said board. Notice of said 
meetings shall be given of the time and place of 
said meetings by written notice posted, postage 
prepaid, to the last known address of each appli- 
cant, at least ten (10) days before the time of 
said meeting, and by publication in a daily paper 
of general circulation in Atlanta, and in a 
nurses' journal, if there be one published in Geor- 
gia. The said notice shall be published at the 
same rates charged for sheriffs' advertisements. 
Said notice shall be inserted at least once, and 
the first insertion shall be made at least two 
weeks prior to said meeting. Provided, the sec- 
retary of said board shall issue a temporary per- 
mit to each application for registration, which 
permit will authorize said applicant to do nursing 
as a registered nurse until the next meeting of the 
board. 

§ 1711(11). Deposit fee by applicant; dental 
nurses. — All graduate nurses making application 
for registration as graduate nurses under this Act 
shall deposit with the Secretary of the said board, 
at the time of making such application, the sum of 
ten ($10.00) dollars as an examination or regis- 
tration fee. Provided, that no person shall en- 
gage in practice as a dental hygienist or dental 
nurse without first obtaining a certificate therefor 
to be issued by the Board of Dental Examiners 
of Georgia, which certificate shall be issued by 
said Board of Dental Examiners upon written ex- 
amination conducted by and satisfactory to said 
board, which shall include the subjects of Dental 
Anatomy, Physiology, Bacteriology, Dental 
Pathology, Sterilization, Office Routine, and Oral 
Hygiene and Prophylaxis. Provided further, that 
applicants for certificates as dental hygienists or 
dental nurses shall be of good moral character, 
shall be at least 19 years of age, shall Have had 
such preliminary education and training as may 
be prescribed by said Board of Dental Examiners, 
and shall pay to said Board of Dental Examin- 
ers a fee of ten dollars for such examination. 
Provided further, that no person to whom such 
certificate is issued shall engage in practice as a 
dental hygienist or dental nurse except under the 
supervision of a licensed denist, and no such per- 
son shall practice dentistry, or do any kind of 
dental work other than to remove calcareous de- 
posits, secretions, and stains from the normally 
exposed surfaces of the teeth, and to apply ordi- 
nary wash or washes of a soothing character, and 
to do sterilization and office routine. 

§ 1711(12). Qualifications. — Each applicant for 
registration as a graduate nurse must be at least 
twenty-one (21) years of age, of good moral 
character, a graduate of a regular chartered 
training-school for nurses, connected with a gen- 
eral hospital or sanatorium (in which medical, 



[44] 



§ 1711(13) 



PROFESSION REGULATED 



§ 1711(16) 



surgical, obstetrical, and pediatric cases, and 
where men, women, and children, are treated) 
where three (3) years of training with a system- 
atic course of instruction on the above-mentioned 
classes of cases is given in the hospital or other 
educational institution, or must have graduated 
from a training-school connected with a hospital 
of good standing, supplying a three (3) years' 
training corresponding to the above standard, 
which training may be obtained in two or more 
hospitals. All qualifications of the applicant shall 
be determined by the State Board of Examiners 
of Nurses for Georgia, which is empowered to 
prescribe such examinations for the applicants as 
will best test their fitness and ability to give effi- 
cient care to the sick. All applicants at the same 
examination shall be subject to the same kind of 
examination; provided that the said board shall 
have the power to grant advanced credit, not in 
any case of excess of twelve (12) months, for 
didactic and laboratory work done in an accred- 
ited college, or for credits either time or scholas- 
tic, earned in an institution other than the one 
from which graduated. 

§ 1711(13). Registration without examination. 

— All nurses graduating on or before June 1, 1909, 
from such training-schools as are referred to in 
the preceding sections shall be, by that fact, en- 
titled to registration without examination, upon 
paying the application fee of ten ($10.00), dollars, 
as provided in this Act, and submitting sufficient 
evidence of good moral character. Nurses who 
shall show to the satisfaction of the said board 
that they are graduates of training-schools con- 
nected with a hospital or sanitorium, giving two 
years' systematic course of instruction, or if they 
graduated before or during the year 1897 from 
such a school giving one year's training, and who 
are in good moral and professional standing, 
and are engaged in the practice of the profession 
of nursing at the passage of this Act, also nurses 
in training at the time of the passage of this Act 
and shall graduate hereafter and possess the qual- 
ifications herein specified, shall, upon the pay- 
ment of the application fee, be entitled to regis- 
tration without examination, provided application 
is made for registration on or before February 1, 
1928. There may be an appeal from the judg- 
ment of the said board by the party who is re- 
fused a license by the board, or whose license is 
revoked, as the case may be, if dissatisfied with 
the judgment, to a jury of the Superior Court of 
the county of the residence of such dissatisfied 
party; said appeal to be had as in other cases now 
provided by law. 

§ 1711(14). Nursing without certificate from 
board; penalty. — After the expiration of six months 
from the passage of this Act it shall be unlawful 
for any person or persons to practice professional 
nursing as a graduate nurse or registered nurse 
in this State without a certificate from said board; 
and any person violating any of the provisions of 
this Act shall be guilty of misdemeanor, and upon 
conviction thereof shall be punished in accordance 
with section 1065 of the Penal Code of the State 
of Georgia. Each graduate nurse who registers 
in accordance with the provisions hereof shall be 
styled and known as a registered nurse, and no 
other nurse shall assume or use such title, or use 
the abbreviation "R. N.," or any other letters, 



words, or figures to indicate that he or she is a 
graduate or registered nurse; and a violation 
hereof shall be deemed a misdemeanor, and shall 
upon conviction be punished accordingly. Annu- 
ally during the months of January or February 
every registered nurse of Georgia shall be re- 
quired to have her certificate validated by the is- 
suance of a card attesting to her right to practice 
ais a registered nurse for the current year. This 
request for validation shall be accompanied by a 
fee of one ($1.00) dollar, and sent to the secre- 
tary of the State Board of Examiners of Nurses 
for Georgia. On March 1 of each year the roster 
of nurses who have validated their certificates 
shall be taken; and the same shall be printed 
within sixty days thereafter in such form and 
manner as may be determined by the board. 
Any certificates not validated may be revoked. 

§ 1711(15). Licenses to undergraduate nurses. 

— The Board of Examiners of Nurses shall issue 
a license to engage in the care of the sick to un- 
dergraduate nurses. Each applicant must be at 
least nineteen (19) years of age, of good moral 
character, must present to the Board of Examin- 
ers a certificate showing that he or she has had 
at least twelve (12) months training in a regular 
chartered training-school for nurses connected 
with a general hospital or sanitorium, in which 
medical, surgical, obstetrical, and pediatric cases, 
and where men, women and children are treated. 

§ 1711(16). Fee from undergraduate nurse. — It 

shall be the duty of said board of Examiners to 
determine all the qualifications of applicants, and 
provide for examination for license for undergrad- 
uate nurse. Upon filing application for examina- 
tion and registration as a licensed undergraduate 
nurse, each applicant shall pay a fee of five ($5.00) 
dollars, and annually during the months of Jan- 
uary or February every licensed undergraduate 
nurse shall be required to have her certificate val- 
idated by the issuance of a card attesting to her 
right to practice as a licensed undergraduate nurse 
for the current year. This request for validation 
shall be accompanied by a fee of fifty (50) cents. 
Any certificate not validated may be revoked. 
This shall not apply to attendants or orderlies 
employed in hospitals. All undergraduate nurses, 
practicing at the passage of this Act, and possess- 
ing the qualifications herein specified, shall, upon 
the payment of the application fee, be entitled to 
registration without examination, provided appli- 
cation is made for registration on or before Feb- 
ruary 1, 1928. After the expiration of six months 
after the passage of this Act, it shall be unlawful 
for any person or persons to practice as under- 
graduate nurse in this State without a certificate 
from said Board of Examiners, except in hos- 
pitals; and any person violating any of the pro- 
visions of this Act shall be guilty of misdemeanor, 
and upon conviction thereof shall be punished in 
accordance with section 1065 of the Penal Code 
of the State of Georgia. Each licensed under- 
graduate who registers in accordance with the 
provisions hereof shall be styled and known as a 
licensed undergraduate nurse, and no other per- 
sons shall assume or use such title, or use the 
abbreviation "L. U. N.," or other letters, words, 
or figures for the purpose of representing that 
he or she is a licensed undergraduate nurse within 
the meaning of this Act. 



[45] 



§ 1711(17) 



STATE BOARD OF PHARMACY 



§ 1731(3) 



§ 1711(17). Emergency nursing. — This Act 
shall not be construed to affect or apply to gra- 
tuitous nursing of the sick by friends of the fam- 
ily, or as an emergency aid. And this shall not be 
construed to affect a situation in the event of pub- 
lic emergency pronounced by the State Board of 
Health to exist in the State at large, or any part 
thereof, or in the event of an emergency declared 
by national health authorities, requiring nursing 
service within or without the State, in which case 
unlicensed persons may be permitted to nurse or 
care for the sick for hire during the continuance 
thereof. 

§ 1711(18). Revocation of certificate; notice to 
holder. — The said board may revoke any certifi- 
cate issued by it, for sufficient cause to be ad- 
judged by it; but no such certificate shall be re- 
voked without a hearing, notice of the time and 
place of which shall be given to the holder of the 
certificate by the secretary at least (30) days be- 
fore the day set for said hearing, which notice 
shall plainly set forth the charges against the 
holder of said certificate, and the trial shall be 
only upon the grounds specified. Said notice 
shall be mailed to the said person so accused, at 
his or her last known address, postage prepaid; 
or the same shall be delivered personally to the 
person so accused. The presiding officer of the 
.said board is authorized and empowered to ad- 
minister oaths to all witnesses giving evidence at 
such hearing, and no evidence shall be received 
at such hearing if the same is not under oath. 

§ 1711(19). Salary of secretary. — Out of the 

funds of the said board, accruing from the appli- 
cation fees herein provided, the secretary of said 
board shall be paid a salary and all necessary ex- 
penses, the salary to be determined by the said 
Board of Examiners. The members of the board 
shall be entitled out of the funds to receive not 
less than six ($6.00) dollars per day for each day 
actually engaged in the service of the board, and 
all necessary expenses. All payments out of said 
funds, or any funds of the board, shall first be 
approved by the presiding officer of said board. 
Be it further enacted, that one or more persons 
be employed by the board, to work under the di- 
rection of the secretary, and to be paid out of 
funds accruing from application fees, to assist in 
carrying out the rules and regulations adopted 
by the said board, and for giving advice and en- 
couragement to nurse-training schools in prepar- 
ing applicants for registration. Duties and sala- 
ries shall be determined by the board, and shall 
be paid as other expenses are paid. 

§ 1711(20). Certificates of registration without 
examination. — The Board of Examiners shall 
have authority to issue certificates of registra- 
tion without examination to graduate nurses of 
a State other than Georgia, or of a foreign coun- 
try, who hold bona fide certificates of registra- 
tion issued under the laws of such a State or 
foreign country; provided, the standards of reg- 
istration are equivalent to those provided in this 
Act, and the individual qualifications of the nurse 
meet the requirements of this Act. The regis- 
tration fee of ten ($10.00) dollars for graduate 
nurses herein provided shall accompany each ap- 
plication for a certificate. Be it further enacted, 
that the Board of Examiners shall have authority 
to issue a certificate of registration or license 



without examination to undergraduate nurses 
registered in a State other than Georgia, or of a 
foreign country, whose qualifications meet the 
requirements of this Act. The registration fee 
of five ($5.00) dollars, as herein provided for un- 
dergraduate nurses, shall accompany each appli- 
cation for certificate. 

§ 1711(21). Continuation of members of ex- 
isting board; its books, etc., to be property of 
new board. — The membership of the present 
Board of Examiners of Nurses for Georgia shall 
continue for the terms for which each member 
was chosen or appointed; and that the books, rec- 
ords, files, furniture, and property of the present 
board shall be the property of the board herein 
created. The board herein created shall be the 
successor or continuation of the board now in 
existence, and the acts of the present board here- 
tofore done shall continue to be in all respects 
valid and lawful, and all registrations heretofore 
made or authorized by the said present board 
shall continue of full force and effect. 

§ 1711(22). Nurses not affected by this Act— 

The provisions of this Act shall not affect nurses 
known as practical nurses, not holding themselves 
out to be either graduate or undergraduate nurses 
within the meaning of this Act. 



CHAPTER 11 
State Board of Embalming 
§ 1717(4). Disinterred bodies. 

As to permit where family consents to disinterment, see 
note to P. C. 408. 



CHAPTER 12 

State Board of Pharmacy 

§§ 1722 to 1731.— Repealed by the Act of 1927, 
pp. 291 et seq., herein codified as §§ 1731(1) et 
seq. 

§ 1731(1). Georgia Board of Pharmacy cre- 
ated. — There is hereby created and established a 
board to be known as the Georgia Board of 
Pharmacy, with the duties and powers as are 
hereinafter in this Act provided. Acts 1927, p. 
291. 

§ 1731(2). Members of existing board to be 
on new board. — Said board shall consist of five 
(5) members, and the members of the now ex- 
isting Georgia State Board of Pharmacy shall 
continue in office and act as members of the said 
Georgia Board of Pharmacy hereby created, with 
all the duties and powers as herein provided, un- 
til their respective terms of office expire, the va- 
cancies as they may occur to be filed in keeping 
with the requirements of this Act. 

§ 1731(3). Governor to commission members; 
term 5 years. — Members of said Georgia Board 
of Pharmacy shall be commissioned by the Gov- 
ernor, and shall serve for a term of five (5) years, 
or until their successors are duly appointed and 
qualified. No person shall be eligible for appoint- 
ment to membership on said board who is not a 
licentiate of the Board of Pharmacy of the State 
of Georgia, and who has not been actually en- 
gaged for a period of five (5) years or more in 
the retail drug business. If any member, of said 



[46] 



§ 1731(4) 



STATE BOARD OF PHARMACY 



§ 1731(16) 



board after his appointment and qualification shall 
cease to be actually engaged in the retail drug 
business, his membership on said board shall at 
once become vacant; nor shall any person be 
eligible to appointment on said board who has 
any official connection with any school or col- 
lege of pharmacy, and if any member of said 
board shall, after his appointment and qualifi- 
cation, become connected with any school or col- 
lege of pharmacy, his membership on said board 
shall immediately become vacant. No member 
of the board who has served one full term shall 
be eligible to reappointment until there has in- 
tervened a period of one (l) full term from the 
date of the expiration of his membership to the 
date of his reappointment. 

§ 1731(4). Annual election of member for 
next vacancy. — The Georgia Pharmaceutical As- 
sociation shall from its membership annually elect 
one member for the next occurring vacancy on 
said board, who shall meet the qualifications as 
required by this Act. When regularly submitted 
to him by the secretary of the said association, 
the Governor shall make the appointment for the 
vacancy occurring in said board. 

§ 1731(5). Unexpired term. — Vacancies occur- 
ring other than by expiration of the term of a 
member shall be filled for the unexpired term 
only by the member receiving next highest num- 
ber of votes at last annual convention of the 
Georgia Pharmaceutical Association. 

§ 1731(6). Oath of appointee. — The appointee 
to said board shall immediately after his appoint- 
ment take and subscribe to an oath or affirma- 
tion, before a qualified officer, that he will faith- 
fully and impartially perform the duties of the 
office, which oath shall be filed with the Secretary 
of State; whereupon the Secretary of State shall 
issue to said appointee a certificate of appoint- 
ment. 

§ 1731(7). Pay of members. — The members 
of said board shall receive as their compensation 
the sum of fifteen dollars ($15.00) per day while 
in the actual performance of their duties as mem- 
bers of said board, and in addition shall receive 
their actual traveling expenses while in the per- 
formance of their duties on said board, such com- 
pensation to be paid out of the funds received by 
said board under the provisions of this Act. 

§ 1731(8). Organization of board.— The said 
board shall, as soon as practicable after this Act 
becomes effective, meet and organize and from 
their members elect a president, a vice-president, 
and a secretary. 

§ 1731(9). Secretary's salary. — The said sec- 
retary shall be paid a salary for his services, the 
amount of the same to be fixed by said board, 
and paid out of said funds. 

§ 1731(10). Examinations by board, time of. 

— The said board shall meet for examination of 
applicants for licenses at such place or places, 
and at such times, as the board may decide. In 
no case shall the board hold more than three 
meetings annually. 

§ 1731(11). Drugs to be compounded only by 
or under supervision of registered pharmacist. — 

It shall be unlawful for any proprietor, owner, or 
manager of any drug-store or pharmacy to al- 

[4 



low any person in his employ except a registered 
pharmacist to compound or mix any drugs, med- 
icines, or poisons for sale, except an employee un- 
der the immediate supervision of a registered 
pharmacist. 

§ 1731(12). Qualifications of Applicants. — 

Applicants for registered pharmacists must be not 
less than twenty-one (21) years of age, and shall 
have at least a high school education with a mini- 
mum of sixteen (16) units as are designated by 
the Association of Accredited Schools, and not 
less than thirty-six (36) months experience in 
a drug store or place where poisons are dis- 
pensed by a licensed vendor registered under 
the laws of the State of his abode, or in lieu of 
the foregoing a graduate of a recognized school 
of pharmacy; provided, this Act shall not be 
construed to affect a person who has had three 
(3) years practical experience under the direct 
supervision of a registered pharmacist at the 
time of the passage of this Act. 

§ 1731(13). Examination fee. — Applicants for 
examination as registered pharmacists under this 
Act shall pay to said board an examination fee 
of fifteen dollars ($15.00). All fees shall be 
paid to the secretary of said board at the time 
of the filing of the application for examination. 
Any applicant failing to make the required mark 
is entitled to another examination without any 
additional charge, provided he takes the second 
examination within one (1) year from the first. 

§ 1731(14). License to one reigstered in 
another State. — The said board may in its dis- 
cretion grant licenses as pharmacists to persons 
who furnish proof that they have been regis- 
tered as such in some other state, and that they 
are of good moral character; provided that such 
other State in its examination requires the same 
general degree of fitness as is required by the 
examination in this State. 

§ 1731(15). Election of representative to meet- 
ing, of association of other States. — The said 
board, in order to determine and be informed 
of the status of the boards of other States de- 
siring reciprocal registration, and in order to be 
advised also regarding the progress of phar- 
macy throughout the country, may annually 
elect one of their members to meet with like 
representatives from other State Boards of 
Pharmacy, the expenses of such member in at- 
tending such meeting to be paid out of the 
funds received by the said board under the pro- 
visions of this Act. The said board through its 
representatives may, with like representatives 
from other State Boards of Pharmacy, join in 
creating and maintaining an Association of 
members of the several States, to be engaged in 
the general advancement of pharmacy and the 
keeping of records of reciprocal registration. 

§ 1731(16). Refusal or revocation of license. 

— Said board may refuse to grant a license to 
any person found guilty of a felony, or gross 
immorality, or who is addicted to the use of al- 
coholic liquors or narcotic drugs to such an 
extent as to render him or her unfit for the 
practice of pharmacy, and may after due hear- 
ing revoke a license for such cause, or revoke 
any license which has been procured by fraud. 

7] 



§ 1731(17) 



MOTOR VEHICLE LAWS— ACT OF 1915 



§ 1770(26) 



§ 1731(17). Who may compound or sell 
drugs, etc. — No person shall engage in the 
compounding or vending of medicines, drugs, 
or poisons within the State without full com- 
pliance with this Act, except: (1) such drug- 
gists as are exempted from the operation of the 
present law by the statute of the State of Geor- 
gia, and such druggists as have heretofore ob- 
tained a license and are legally authorized by 
existing laws to compound and vend drugs, 
poisons, and chemicals; (2) physicians putting 
up their own prescriptions and dispensing med- 
icines from their own offices. (3) This item 
shall be construed in the interest of the pub- 
lic health, and shall not be construed to pro- 
hibit the sale by merchants of home remedies, 
not poisons, or the sale by merchants of prep- 
arations commonly known as patent or pro- 
prietary preparations when sold only in the 
original and unbroken packages, Paris green, 
arsenate of copper, arsenate of lead, or prep- 
arations containing any of these articles used 
for killing Lincoln-bugs, cabbage-worms, cater- 
pillars, all and similar insects, provided the la- 
bels, cartons, and packages containing such 
preparations have the word "Poison" printed 
across the face, and conform to the United 
States Pure Food and Drug Act, and general 
merchants other than druggists shall not be re- 
quired to register under the provisions of this 
Act. 

§ 1731(18). Duty of board as to examina- 
tion, license, prosecution. — It shall be the duty 
of said board to examine all applicants for li- 
censes under the provisions of this Act sub- 
mitted in proper form, and to grant certificates 
of licenses to such persons as may be entitled 
to the same. It shall further be the duty of 
said board to cause the prosecution of all per- 
sons violating the provisions of this Act, and 
in all such prosecutions the burden shall be 
upon the defendant to show his authority. 

§ 1731(19). Fees to go to fund in State 
Treasury for pay and expenses of board. — 

All monies paid to the secretary in fees or from 
other sources shall be paid by him into the 
Treasury of the State of Georgia and there 
held by the State Treasurer for the payment of 
the compensation and expenses by said board 
and secretary; the funds arising under the pro- 
visions of this Act being hereby especially al- 
located under the authority of the General As- 
sembly of Georgia for this purpose. After the 
compensation of said board, the salary of the 
secretary, and expenses of said board and sec- 
retary have been paid, the board shall have the 
right to establish a reserve or emergency fund 
not in excess of $1,000.00, and all surplus over 
and above the above-mentioned expenses and 
the above-mentioned surplus shall, on the first 
day of January of each year, revert to the 
Treasury of Georgia, to be placed in the gen- 
eral fund of the State. 

§ 1731(20). Meaning of "drug-store," "phar- 
macy," "apothecary." — The term "drug-store," 
"pharmacy," or "apothecary," wherever used in 
this Act, shall be construed to mean a place 
where drugs, medicines, or poisons are dis- 
pensed, compounded, or sold at retail under the 



direction and direct supervision of a person who 
is duly licensed and registered by the Georgia 
Board of Pharmacy to practice in Georgia. 

§ 1731(21). Unlawful use of title "drug-store," 
etc. — It shall be unlawful for any person in con- 
nection with any place of business or in any 
manner to take, use, or exhibit the title "drug- 
store," "pharmacy," "apothecary," or any com- 
bination of such titles or any title or description 
of like import or any synonym or other term 
designated to take the place of such title, unless 
such place of business is in fact and in truth a 
drug-store or pharmacy as defined in this Act. 

§ 1731 (22). Annual registration. — All per- 
sons now lawfully engaged in compounding and 
vending medicines, drugs, and poisons in this 
State, shall, on or before the first day of Janu- 
ary following the passage of this Act, and every 
person who shall be hereafter duly licensed un- 
der the provisions of this Act shall, before 
engaging in any business under said license, reg- 
ister in the office of the Secretary of the Geor- 
gia Board of Pharmacy annually; said registra- 
tion shall be entered in a book to be kept for 
that purpose by said secretary, his name, na- 
tionality, and credentials and date thereof under 
which he is entitled to engaged in such voca- 
tion at the time of filing such registration, and 
a certificate of such registration, stating the 
terms of the same, shall be given him by said 
secretary. 

§ 1731(23). Power to make rules. — The said 
Georgia Board of Pharmacy herein provided 
shall have the power and authority to make 
rules and regulations governing the action of 
the board, and to make such other rules and 
regulations as they deem necessary to carry out 
the intent and provisions of this Act. 

§ 1731(24). Violation a misdemeanor. — Any 

violation of any provision of this Act shall be 
a misdemeanor, and the person so offending 
shall be punished as prescribed in section 1065 
of the Penal Code. 



CHAPTER 17 
Motor Vehicle Laws 



ARTICLE 2 

Acts 1915, Ex. Sess., and Amendatory Acts 

§ 1770(26). Schedule of annual fees for ve- 
hicles; registry and license of manufacturers 
and dealers; number plates; tags for pur- 
chasers ; penalty. 

Constitutionality. — The act is not unconstitutional because 
it undertakes to tax automobiles, for the construction of pub- 
lic roads, and that there is no authority in the General As- 
sembly of Georgia to tax personal property in order to raise 
a fund for the construction of public roads, §§ 6358 and 6359, 
or the fourteenth amendment of the Constitution of the 
United States. Lee v. State, 163 Ga. 239, 135 S. L. 912. 

The act is not unconstitutional upon the ground that it 
violates the constitution, § 6554, which provides that all tax- 
ation shall be uniform upon the same class of subjects and 
ad valorem on all property taxed. Lee v. State, 163 Ga. 239, 
135 S. L- 912. 

The tax is not a property tax. Lee "v. State, 163 Ga. 239, 
135 S. L- 912. 



148] 



§ 1770(28) 



MOTOR VEHICLE LAWS— ACT OF 1927 



§ 1770(€Ob) 



§ 1770(28). Display of number-plate. 

Constitutionality. — This section is not open to attack on 
the ground that it was not one of the subjects included in the 
Governor's proclamation convening the legislature in ex- 
traordinary session. L,ee v. State, 163 Ga. 239, 135 S. E> 
912. 



ARTICLE 3 
Acts 1921, pp. 255 et seq. 



§ 1770(50). Equipments. 

Purpose of Regu3atton. — The purpose of these several 
regulations of motor-vehicles is the protection of the lives 
and limbs of all persons upon or using such streets and 
highways, not only those who may be met, overtaken, or 
passed by the driver, but as well for the protection of those 
who may accompany him. Black v. State, 34 Ga. App. 449, 
451, 130 S. E. 591. 

Presumption as to Compliance. — With nothing appearing 
to the contrary, it will be assumed that the automobile was 
duly equipped with "front lamps" and that they were 
"throwing strong white lights to a reasonable distance in 
the direction in which such vehicle is proceeding," in ac- 
cordance with the requirements of the section. Macon v. 
Jones, 36 Ga. App. 799, 803, 138 S. E. 283. 

Insufficient Brakes as Negligence Per Se. — The operation 
of a truck along the public streets not equipped with effi- 
cient and serviceable brakes, constituted negligence per se. 
Orange Crush Bottling Co. v. Smith, 35 Ga. App. 92, 132 
S. E- 259. 

§ 1770(51). Speed limit; intersections, etc.; 
pedestrians, horses, etc.; passing stationary 
street cars, etc. 

Insufficient Brakes Negligence Per Se. — The trial court 
did not err in instructing the jury that the law requires 
motor-vehicles while in use upon the public streets to be 
equipped with efficient and serviceable brakes, and that 
the operation of the truck along the public streets not so 
equipped constituted negligence per se. Orange Crush Bot- 
tling Co. v. Smith, 35 Ga. App. 92, 132 S. E. 259. 

Section Applied. — A charge to the effect that whenever 
the operator to any vehicle along a public highway shall 
meet a vehicle approaching from an opposite direction, the 
operator of the first vehicle shall turn to the right, was 
held applicable to the conduct of the plaintiff. Hornbrook 
v. Reed, 35 Ga. App. 425, 133 S. £. 264. 

§ 1770(52). Passing moving vehicles. 

Constitutionality. — So much of the section as undertakes 
to make penal the failure of the operator of a motor-vehicle, 
when meeting a vehicle approaching in the opposite direc- 
tion, to "turn his vehicle to the right so as to give one 
half of the traveled roadway, if practicable, and a fair op- 
portunity to the other to pass by without unnecessary inter- 
ference" is too uncertain and indefinite in its terms to be 
capable of enforcement. Heath v. State, 36 Ga. App. 206, 
136 S. K- 284. See also Hale v. State, 21 Ga. App. 658, 94 
S. I). 823, holding the corresponding section of the Act of 
1915 [§ 1770(34)] unconstitutional. 

What Constitutes Meeting. — Where a motor-car travel- 
ing along a public highway has been brought to a stop in 
the highway, and another car is approaching it from the 
front, both cars, notwithstanding one is stationary, are 
meeting each other in the sense of the section. Roberts v. 
Phillips, 35 Ga. App. 743, 134 S. E. 837. 

Passage on Narrow Bridge. — Charges in an indictment 
that the defendant failed and refused to give the deceased a 
fair opportunity to pass by without unnecessary interference 
is being practical to give one half to the travelled roadway, 
were not sustained by the proof, where the evidence showed 
that the cars collided on a temporary bridge which was 
less than twelve feet wide and too narrow to permit two au- 
tomobiles to pass each other thereon. Shupe v. State, 36 
Ga. App. 286, 287, 136 S. E. 331. 

Bridges — Sufficiency of Guard-Rails. — There is no legal 
duty on a railroad company to construct the guard-rails of 
a bridge sufficiently strong to withstand the impact of an 
automobile going at the rate of twenty to twenty-five miles 
per hour. Corley v. Cobb County, 21 Ga. App. 219, 93 S. E- 
1015; Eberhart v. Seaboard Air-L,ine R. Co., 34 Ga. App. 49, 
55, 129 S. E. 2. 

§ 1770(53). Warning. 

Sounding Horn at Intersections. — There is no statute in 



this State requiring the operator of a motor -vehicle to sound 
a horn or give any other warning on approaching the inter- 
section of public streets or highways, unless such intersec- 
tion is a "dangerous place upon such street or highway." 
O'Donnelly v. Stapler, 34 Ga. App. 637, 131 S. E. 91. 

An allegation that defendant failed to give any warning 
whatever on approaching an intersection did not amount to 
a charge of negligent violation of a statute, although it 
sufficiently specified, in connection with other parts of the 
petition, that the defendant was negligent in the violation 
of his duty to exercise ordinary care to avoid injury to the 
plaintiff's automobile at such intersection. O'Donnelly v. 
Stapler, 34 Ga. App. 637, 131 S. E. 91. 

§ 1770(55). Chauffeur's license. 

Roads to Which Applicable. — While it is unlawful for a 
minor under sixteen years of age to operate a motor vehicle 
upon the public highways, the rule is not applicable to roads 
which are not public streets or highways. W. & A. R. R. 
v. Reed, 35 Ga. App. 538, 544, 134 S. E- 134. 

Effect of Presence of Owner — Experience. — It is unlawful 
for a minor under sixteen years of age to operate a motor- 
vehicle upon th£ highways of this State, whether he is ac- 
companied by tne owner of the machine or not, and regard- 
less of experience. Western, etc., Railroad v. Reed, 35 Ga. 
App. 538, 544, 134 S. E. 134. 



ARTICLE 3A. 

Acts of 1927 pp. 226 et seq. 

§ 177O(60a). Secretary of state, ex-officio com- 
missioner of vehicles. — After the passage of this 
Act the Secretary of State shall be ex-officio Com- 
missioner of vehicles of this State, and shall be 
charged with the execution of the Act hereafter 
enacted. Acts 1927 p. 227. 

§ 1770 (60b). Definitions. — For the purpose of 
this Act the following definitions shall apply: 

"Vehicle" — Any contrivance used for trans- 
portation of persons or property on public high- 
wa}^s. 

"Motor-vehicle" — Any vehicle, except tractors,, 
propelled by power other than muscular power,, 
not operated exclusively upon tracks. 

"Motorcycle" — Any motor-vehicle having but 
two main wheels in contact with the ground, up- 
on which the operator sits astride. A motorcycle 
may carry a one wheel attachment generally known 
as a side-car. 

"Tractor" — Any self-propelled vehicle designed 
for use as a traveling power-plant or for drawing 
other vehicles, but having no provision for carry- 
ing loads independently. 

"Trailer" — Any vehicle without motive powei,. 
designed for carrying persons or property either 
partially or wholly on its own structure and for 
being drawn by a self-propelled vehicle, except 
those running exclusively on tracks. 

"Pneumatic tires" — Tires of rubber and fabric 
inflated with air. 

"Solid tires" — Tires of rubber or similarly elas- 
tic material that do not depend on confined air for 
the support of the load. 

"Metallic tires" — Tires of any metal or other 
hard material. 

"Manufacturer," "dealer" — Any person, firm, or 
corporation engaged in the manufacture, sale, pur- 
chase or leasing of motor vehicles or tractors. 

"Owner" — Any person, firm, corporation or as- 
sociation holding title to a vehicle or having ex- 
clusive right to the use thereof for a period of more 
than thirty days. 

"Operator" — Any person who drives or operates, 
a motor-vehicle or tractor. 



[49] 



§ 1770(60c) 



MOTOR VEHICLE LAWS— ACT OF 1927 



§ 1770(60d) 



"Chauffeur" — An operator for hire. 

"Local authorities" — All officers and public offi- 
cials of the State, municipalities, and counties of 
the State. 

"Trucks". — "A motor-vehicle for the transpor- 
tation of property or non-passenger carrying 
motor-vehicles." 

For the puroose of this Act — 

A vehicle is considered equipped with pneu- 
matic tires when pneumatic tires are used on all 
wheels. 

A vehicle is considered equipped with solid 
tires when solid tires are used on two or more 
wheels. 

A vehicle is considered equipped with metallic 
tires when metallic tires are used on two or more 
wheels. 

The National Automobile Chamber o f Com- 
merce horse-power rating formula is hereby 
adopted as the standard for determining the 
horse-power of passenger-carrying vehicles. 

§ 1770 (60c). Registration. — That every owner 
of a motor-vehicle, trailer, tractor (except tractors 
used only for agricultural purposes) or motor- 
cycle shall, on or before the first day of February 
in each year, before he shall operate such motor- 
vehicle, tractor, trailer or motorcycle, register 
such vehicle in the office of the Commissioner of 
Vehicles, and obtain a license to operate the same 
for the ensuing year; and every chauffeur em- 
ployed to operate motor-vehicles shall likewise 
register and obtain a license as hereinafter pro- 
vided. 

That application for the registration of a motor- 
vehicle, trailer, tractor or motorcycle shall be 
made to the Commissioner of Vehicles, upon 
blanks prepared by him for such purposes, by the 
owner. Such application shall contain a state- 
ment of the name, place of residence, and address 
of the applicant, together with a brief description 
of the vehicle to be registered, its name, model, 
the name of the manufacturer, its motor number, 
its shipping weight, carrying capacity, and such 
other information as the Commissioner of Ve- 
hicles may require. 

Provided, that nothing in this Act shall be 
construed as repealing the Act approved August 
22, 1925, requiring proof of ownership, certifi- 
cate of registration and money-order receipt, fif- 
teen-day permit, and penalty for violation of said 
Act, pages 315 to 317 inclusive of Georgia Laws 
of 1925. 

That application for a chauffeur's license shall 
be made to the Commissioner of Vehicles upon 
blanks prepared for such purpose by him, and 
shall be signed and verified by oath or affirma- 
tion. Such application shall be made annually on 
or before the first day of February, and shall 
contain a statement of the name and address of 
the chauffeur, and such other information as the 
Commissioner of Vehicles may require, and shall 
be signed and endorsed by at least three respon- 
sible owners of motor-vehicles and employers of 
chauffeurs; provided that no such license shall be 
issued to any person under sixteen years of age. 
A fee of $2.00 shall accompany the application. 
Upon receipt of such application and the payment 
of the required fee, the Commissioner of Vehicles 
shall file the application, register the same, assign 

[ 



to the applicant a distinctive number, and make 
the same a matter of record in his office. He 
shall likewise furnish such chauffeur a badge, 
which badge shall be evidence of his right to act 
as chauffeur until the first day of February of the 
next year following. Such badge shall be of 
aluminum or some other suitable metal, oval in 
form, the greater diameter not to exceed two 
inches and there shall be stamped thereon the 
words "Registered Chauffeur No. (Here insert 
the registration number designated) State of 
Georgia." The badges shall be of uniform size, 
numbered consecutively, beginning with the fig- 
ure 1, and shall be issued in consecutive order and 
of different design each year. The chauffeur 
shall at all times, while operating a motor-vehicle 
upon public streets and highways, wear his badge 
pinned to his clothing in a conspicuous place. No 
registered chauffeur shall voluntarily or other- 
wise permit any other person to wear his badge, 
nor shall any person wear a chauffeur's badge be- 
longing to any other person, or a fictitious badge, 
while operating a motor-vehicle upon the public 
streets and highways. 

§ 1770(60d). Registration, licensing, and per- 
mit fees. — The annual fees for licensing of the 
operation of vehicles shall be as follows for each 
vehicle registered: 

A. Motorcycle $ 5.00 

B. Motorcycle side-car 3.00 

C. Passenger-carrying motor-vehicles fifty 

(50) cents per one hundred (100) 
pounds (or major fraction thereof) 
gross weight of vehicle; minimum fee. 11.25 

For each non-passenger carrying motor- 
vehicle or truck of one ton capacity or 
less 15.00 

For each non-passenger carrying motor- 
vehicle or truck of more than one and 
not exceeding one and one half tons 
capacity 22.50 

For each non-passenger carrying motor- 
vehicle or truck of one and one half 
tons and not exceeding two tons capa- 
city 30.00 

For each non-passenger carrying motor- 
vehicle or truck of more than two tons 
and not exceeding two and one half 
tons capacitv 37.50 

For each non-passenger carrying motor- 
vehicle or truck of more than two and 
one half tons capacity and not exceed- 
ing three tons capacity 45.00 

For each non-passenger carrying motor-ve- 
hicle or truck of more than three tons 
capacity and not exceeding three and 
one half tons capacity 52.50 

For each non-passenger carrying motor-ve- 
hicle or truck of more than three and 
one half tons capacity and not exceed- 
ing four tons capacity 75.00 

For each non-passenger carrying motor-ve- 
hicle or truck of more than four tons ca- 
pacity and not exceeding five tons ca- 
pacity 150.00 

For each non-passenger carrying motor-ve- 
hicle or truck of more than five tons 
capacity and not exceeding six tons ca- 
pacity 375.00 

50 ] 



§ 1770(60e) 



MOTOR VEHICLE LAWS— ACT OF 1927 



§ 1770(60i) 



For each non-passenger carrying motor-ve- 
hicle or truck of more than six tons ca- 
pacity and not exceeding seven tons ca- 
pacity 750.00 

For each non-passenger carrying motor-ve- 
hicle or truck of more than seven tons 
capacity 1,125.00 

H. Trailers (or semi-trailers), when equip- 
ped with pneumatic tires, one dollar 
($1.00) per one hundred (100) pounds 
(or major fraction thereof) gross 
weight of vehicle. 

K. Trailers (or semi-trailers), when equip- 
ped with solid tires, one dollar and fifty 
cents ($1.50) per one hundred (100) 
pounds (or major fraction thereof) 
gross weight of vehicle. 

L. Trailers (or semi-trailers), when equip- 
ped with metallic tires, two dollars 
C$2.00) per one hundred (100) pounds 
(or major traction thereof) gross weight 
of vehicle. 

T. Tractors when equipped with pneumatic 

tires 15.00 

V. Tractors equipped with solid or metallic 

tires or treads 30.00 

Provided, that tractors used exclusively for 
agricultural purposes shall not be required to 
register or to pay any fees. 

Provided, that hearses and ambulances shali 
pay the rates prescribed for passenger-carrying 
motor-vehicles in paragraph C. 

§ 1770(60e). Half-Rate fees between Aug. 1 
and Jan. 1. — Where application is made for the 
registration of any vehicle or tractor between the 
dates of August 1st and January 1st of any year, 
the fee charged for such registration shall be one 
half the amount set forth in section 1770 (60d). 

§ 1770(60f). Receipt for post-office order as 
permit. — When application is made for the regis- 
tration of any vehicle or tractor and a United 
States post-office money-order is purchased for 
the correct fee and forwarded with said applica- 
tion, the receipt for said money-order, when 
dated by the proper authority, shall serve as a fif- 
teen-day permit to operate the vehicle or tractor 
on the highways of the State. 

§ 1770(60g). Registration of makers and deal- 
ers. — Manufacturers and dealers engaged in the 
manufacture, sale, or leasing of motor-vehicles or 
tractors shall register with the Commissioner of 
Vehicles, making application for a distinguishing 
dealer's number, specifying the name and make 
of motor-vehicle manufactured, sold, or leased by 
them, upon blanks prepared by the Commis 
sioner of Vehicles for such purposes, and pay 
therefor a fee of twenty-five ($25.00) dollars, 
which fee shall accompany such application, and 
for which said fee the Commissioner of Vehicles 
shall furnish to said dealers two number-plates to 
be known as a dealer's number and to be dis- 
tinguished from the number-plates herein pro- 
vided for by a different and distinguishing color 
to be determined by the Commissioner of Ve- 
hicles, with the word "Dealer" on same; dealers 
number to be for the purpose of demonstrating 
or transporting dealer's vehicles for sale or lease. 
No dealer or manufacturer may use or permit to 



be used a dealer's number for private use or on 
cars for hire, or other manner not provided for in 
this section. In case dealers or manufacturers 
desire more than two tags, they shall so state on 
the application, and, in addition to the fee of 
twenty-five (25.00) dollars hereinabove provided, 
shall pay ten ($10.00) for each and every addi- 
tional number-plate furnished. 

§ 1770(60h). Number- Plates — description, and 
how attached. — Upon receipt of the application 
and the payment of the required fee, the Commis- 
sioner of Vehicles shall file the application, 
register the vehicle, assign to it a distinctive serial 
number, and make the same a matter of record. 
He shall furnish also without cost two metal num- 
ber-plates showing thereon the serial number 
designated to such vehicle. Number-plates shall 
be of metal at least seven (7) inches wide and 
not less than sixteen (16) inches in length, and 
shall show in bold characters the year of registra- 
tion, serial number, and abbreviation of the name 
of the State, and such other distinctive markings 
as in his judgment the Commissioner of Vehicles 
may deem advisable, so as to indicate the class of 
weight of the vehicle for which the number-plates 
were issued. Duplicate number-plates, when one 
of the originals have been lost, defaced, or de- 
stroyed, may be obtained from the Commissioner 
of Vehicles upon filing affidavit setting forth the 
facts of such loss or destruction, and the payment 
of a fee of one dollar. A number, when issued, 
shall not be transferred from one vehicle to an- 
other, and shall not be used by any person or up- 
or any motor-vehicle [other than the motor- 
vehicle] to which it is assigned, and any use 
of said number by any person or persons in 
any manner not provided for in this Act shall 
be a violation of said Act; provided, however, that 
where a motor-vehicle has been duly registered in 
the office of the Commissioner of Vehicles, and 
the number assigned to said vehicle for the yeai, 
the owner of said motor-vehicle to which said 
number has been assigned may, upon sale or ex- 
change of said motor-vehicle, transfer and assign 
the number assigned to said motor-vehicle to the 
purchaser of said machine, by registering such 
transfer in the office of the Commissioner of 
Vehicles and the payment of fifty cents, which 
shall accompany said transfer or registration, and 
upon said transfer the assignee of said number 
shall stand in the position of the original personal 
in whose name such number is recorded. 

Every motor-vehicle, tractor, trailer, or motor- 
cycle, which is in use upon the highways of the 
State, shall at all times display the number- 
plates assigned to it, and the same shall be 
fastened to both the front and rear of the ma- 
chine in a position so as not to swing, and shall 
be at all times plainly visible. It shall be the 
duty of the operator of any motor-vehicle to keep 
both number-plates legible at ail times. 

§ 1770(60i). Lights and brakes. — Every motor- 
vehicle, tractor, and motorcycle, while in use or 
operation upon the streets or highways of this 
State, shall at all times be provided and equipped 
with efficient and serviceable brakes and signal- 
ling device, consisting of a horn, bell, or other 
suitable device for producing an abrupt warning 
signal. Every motor-vehicle using the highways 



[51] 



1770(60j) 



MOTOR VEHICLE LAWS— ACT OF 1927 



§ 1770(601) 



of this State at night shall be equipped with a 
lamp or lamps clearly visible for a distance of not 
less than one hundred feet from front and rear. 

"Front Lamp"— Every motor-vehicle and trac 
tor shall be provided with at least two lamps ot 
approximately equal candle-power, mounted on 
the the right and left sides thereof, and every 
motorcycle shall have mounted on the front 
thereof at least one lamp. The front lamps shall 
throw light to a reasonable distance in the direc- 
tion in which such vehicle is proceeding. Front 
lamps shall be provided with a suitable device for 
dimming or changing focus, so as to prevent 
dangerously glaring or dazzling rays from the 
lamps in the eyes of approaching drivers. 

"Rear Lamps" — Every motor-vehicle, tractor, 
and trailer shall have on the rear thereof, and to 
the left of the axis thereof, one lamp capable of 
displaying a red light visible for a distance of at 
least one hundred feet behind such vehicle; pro- 
vided that when a vehicle is used in conjunction 
with another vehicle or vehicles, only the last of 
such vehicles shall be required to carry such 
lamp. Every motor-vehicle, tractor, trailer, or 
motorcycle, when on highways of this State at 
night, shall carry a lamp illuminating with white 
lights the rear registration plate of such vehicle, 
so that the characters thereon shall be visible for 
a distance ot at least fifty feet. 

Provided, that the provisions of this section as 
to lights, horns, bells, and or other signalling de- 
vices shall not apply to tractors used exclusively 
for agricultural purposes when and while being 
operated upon public roads between daylight and 
dark only; and such lights, horns or other, signal- 
ling devices shall not be required for such agricul- 
tural tractors not using the public roads. 

Provided, that the provisions of this Act requir- 
ing front and rear lights on vehicles shall not 
apply to horse or mule drawn vehicles or other 
vehicles drawn by muscular power. 

§ 1770(60j). Non-Residents License. — Motor 
vehicles owned by non-residents of the State may 
be used and operated on the public streets and 
highways for a period of thirty days without hav- 
ing to register and obtain a license to do so or a 
chauffeur's license; provided, that the owner or 
owners thereof shall have fully complied with the 
laws requiring the registration of motor-vehicles 
in the State or Territory of their residence, and 
that the registration number and initial letter of 
such State or Territory shall be displayed and 
plainly visible on such vehicle or vehicles. In other 
respects, however, motor-vehicles owned by non- 
residents of the State and in use temporarily with- 
in the State shall be subject to the provisions of 
this Act; provided, no resident of this State shal' 
be allowed to operate a motor-vehicle within this 
State under a license issued by another State. 

§ 1770(60k). Restrictions as to speed. — No 

persons shall operate a motor-vehicle upon any 
public street or highway at a speed greater than 
is reasonable and safe, having due regard for the 
width, grade, character, traffic, and common use 
of street or highway, or so as to endanger life or 
limb or property in any respect whatsoever; but 
said speed shall not exceed those tabulated be- 
low: 



Total gross combined 

weight of motor ve- Speed in miles per hour 
hide and load in Kind of Tires 

pounds. Metallic Solid Pneumatic 

Less than 10,000 10 25 40 

10,000 to 16,000 8 20 25 

Over 16,000 5 18 20 

§ 1770(601). Restrictions as to traffic— Every 
person operating a vehicle upon the highways ot 
this State shall observe the following traffic rules 
and regulations: 

a. All vehicles not in motion shall be placed witn 
their right sides as near the right side of the high- 
way as practicable, except on city streets where 
traffic is obliged to move in one direction only. 

b. Slow-moving vehicles shall at all times be 
operated as close to the right-hand side of the 
highway as practicable. 

c. An operator meeting another vehicle coming 
from the opposite direction on the same highway 
shall turn to the right of the center on the high- 
way, so as to pass without interference. 

d. An operator of a vehicle overtaking another 
vehicle going in the same direction, and desiring 
to pass the same, shall pass to the left of the ve- 
hicle overtaken, provided that the way ahead is 
clear of approaching traffic, but if the way is not 
clear he shall not pass unless the width of the 
roadway is sufficient to allow his vehicle to pass 
to the right of the center thereof in the direction 
in which his vehicle is moving; provided further, 
that no operator shall pass a vehicle from the rear 
at the top of a hill or on a curve where the view 
ahead is in any way obscured or while the vehicle 
is crossing an intersecting highway. An operator 
overtaking and desiring to pass a vehicle shall 
blow his horn, and the operator of the vehicle so 
overtaken shall promptly, upon such signal, turn 
his vehicle as far as reasonably possible to the 
right in order to allow free passage on the left of 
his vehicle. 

e. An operator in rounding curves shall reduce 
speed and shall keep his vehicle as far to the right 
on the highway as reasonably possible. 

f. An operator intending to start, to stop, or to 
turn his vehicle to the left or right shall extend 
the hand and arm horizontally from and beyond 
the left side of the vehicle. 

g. An operator of a vehicle shall have the right 
of way over the operator of another vehicle who 
is approaching from the left in an intersecting 
highway, but shall give the right of way to an 
operator of a vehicle approaching from the right 
on an intersecting highway. 

h. An operator of a vehicle shall bring the same 
to a full stop not less than five feet from the rear 
of any street-car or passenger-carrying bus headed 
in the same direction, which has stopped for the 
purpose of taking on or discharging passengers, 
and shall remain standing until such car has taken 
on or discharged said passengers; provided, how- 
ever, that said operator may pass such street car 
where a safety zone is established by proper au- 
thorities, or where said operator may pass such 
car at a distance of at least eight feet therefrom, 



[52] 



§ 1770(60m) 



MOTOR VEHICLE LAWS— ACT OF 1927 



§ 1770(60s) 



and provided further, that he shall have slowed 
down and proceeded cautiously. 

i. An operator shall reduce speed at crossing 
or intersection of highways, on bridges, or sharp 
curves and steep descents, and when passing any 
animal being led on the highw r ay. 

j. An operator shall not use the cut-out of a 
motor-vehicle while on the highways of this State. 

k. An operator of a motor-vehicle or tractor 
shall sound his horn or other signalling device 
wnen approaching points on the highways where 
the view ahead is not clear or where the view of 
the side of an intersecting highway is obstructed; 
provided that in no such case shall such horn or 
signalling device be used for the purpose of mak- 
ing unnecessary noise. 

l. All vehicles carrying poles or other objects 
which project more than five feet from the rear 
shall, during the period of from one half hour 
after sunset to one half hour before sunrise, carry 
a red light at or near the rear end of the pole or 
other object so projecting. During the period of 
from one half hour before sunrise to one half 
hour after sunset vehicles shall carry a danger- 
signal at or near the rear end of pole or other 
object so projecting. 

§ 177O(60m). Restriction as to operators. — 

No person shall operate a motor-vehicle or 
motorcycle upon any public street or highway, 
whether as owner or operator of such vehicle, if 
under sixteen years of age, or while under the in- 
fluence of intoxicating liquors or drugs; and no 
person shall take, use, or operate any motor-ve- 
hicle or motorcycle upon the public streets and 
highways without the permission of the owner 
thereof. 

§ 1770 (60n). In case of accident. — In case of 
accident to any person or damage to any prop- 
erty upon the public street or highway, due to the 
operation of a motor-vehicle, tractor, or trailer 
thereon, the operator of such machine shall im- 
mediately stop, and, upon request of the person 
injured or sustaining damage thereby, or of any 
other person present, give such person his name 
and address, and if he is not the owner of such 
vehicle, then in addition the name and address of 
the owner thereof, and further he shall render 
such assistance as may be reasonable or neces- 
sary. 

§ 1770 (60o). Restriction as to size. — No ve- 
hicle shall be operated on the highways of this 
State whose width, including load, is greater than 
ninety-six (96) inches (except traction engines, 
whose width shall not exceed one hundred and 
eight (108) inches, a greater height than twelve 
( 12) feet, six (6) inches, or a greater length than 
thirty (30) feet; and no combination of vehicles 
coupled together shall be so operated whose total 
length, including load, shall be greater than 
eighty five (85) feet; provided, that in special 
cases vehicles whose dimensions exceed the fore- 
going may be operated under permits granted as 
hereinafter provided. 

§ 1770 (60p). Restriction as to weight. — No 

vehicle of four wheels or less, whose gross 
weight, including load, is more than 22,000 
pounds, no vehicle having a greater weight than 



17,600 pounds on one axle, and no vehicle having 
a load of over eight hundred (800) pounds per 
inch width of tire upon any wheel concentrated 
upon the surface of the highways (said width in 
the case of rubber tires to be measured between 
the flanges of the rim) shall be operated on the 
highways of this State; provided, that in special 
cases vehicles whose weight, including loads, ex- 
ceed those herein prescribed may be operated 
under special permits granted as hereinafter pro- 
vided. Provided further, that the State High- 
way Commission may designate certain roads or 
sections of roads on the State-Aid Highway Sys- 
cem on which the traffic requirements do not 
justify heavy type of pavement at the present 
time, and the said State Highway Commission 
may prescribe the maximum gross weight of ve- 
hicle, including load, which may be operated over 
the sections thus designated. 

§ 1770 (60q). Restriction on wheels. — No load 
or vehicle any portion of which drags or slides on 
the surface of the roadways shall be used or 
transported on the highways of this State; no 
vehicle shall be used or transported on the high- 
ways of this State the wheels of which while be- 
ing used or transported, either from construction 
or otherwise, cause pounding on the road surface. 
No vehicle equipped with solid rubber tires shall 
be used or transported on the highways of this 
State, unless every solid rubber tire on such ve- 
hicle shall have rubber on its entire traction sur- 
face at least one inch thick above the edge of the 
flange on the entire periphery. No vehicle shall 
be used or transported on the highways of this 
State the wheels of which have on the surface any 
wooden or metal cleets, spikes, corrugations, or 
other irregularities which tend to damage the 
surface of the road; provided that this section 
shall not be taken to prohibit the use of tire 
chains. 

§ 1770 (60r). Permits for extra size or weight. 

— • The special permit required by sections 
1770(60p), 1770(60xi) and 1770(60r) of this ar- 
ticle, for the operation of a vehicle whose size or 
weight with load 1 exceeds the limits prescribed by 
this Act, shall be in w r riting and be issued at the 
discretion of the State Highway Engineer of this 
State, or of those officials of the State's political 
subdivisions who have charge of the highways 
and bridges over which vehicle is to operate. 
Such permit may be issued for a single trip or 
for a definite period not beyond the expiration of 
the vehicle registration, and may designate the 
highways and bridges to be used. 

§ 1770 (60s). Municipal regulations of autos. — 

That nothing contained in this Act shall be con- 
strued as changing or interfering with any regu 
lation or ordinance which has heretofore or may 
hereafter be adopted b}' any municipality of this 
State, regulating the running or operation of 
motor-vehicles described in this Act; and pro- 
vided further, that nothing in this Act shall pre- 
vent cities and towns from regulating, by reason- 
able ordinance, the rate of speed except as pro- 
vided hereinafter, noisy cut-outs, and glaring 
headlights within said cities and towns; provided, 
further that nothing herein shall prevent incor- 
porated cities and towns from requiring by ordi- 



[53] 



§ 1770(60t) 



MOTOR VEHICLE LAWS— ACT OF 1927 



§ 1770(60cc) 



nance the owners of motor-vehicles residing 
within the incorporated limits of said cities or 
towns to register the number of State license 
with the clerk of council or other officer to be 
designated by such city or town, together with a 
brief description of such motor-vehicle, and said 
incorporated cities or towns shall have the power 
to provide a penalty for the violation of such or- 
dinance; provided, no additional license fee shall 
be charged by any municipality. 

§ 1770 (60t). Expense of operation. — That the 
necessary expenses to carry out the provisions of 
this law shall be defrayed out of the sums col 
lected thereunder, and the amount thereof shall 
be fixed annually in advance upon an itemized 
budget-sheet submitted by the Commissioner of 
Vehicles, thirty days prior to the meeting of the 
General Assembly, accompanied by an itemized 
report of the expenditures made for the preced- 
ing year, when approved by the Governor of this 
State. Said expense fund, or so much thereof as 
shall be needed, shall be drawn upon the war- 
rants of the Governor, supported by bills of par- 
ticulars and vouchers submitted by the Commis- 
sioner of Vehicles; provided said expense fund 
as shown by said approved budget-sheets shall 
be set aside out of the first collection made here- 
under in any fiscal year, and provided the sums 
used to defray said expenses shall not exceed 5 
per cent, of the total revenue derived under this 
Act. 

§ 1770 (60-u). Disbursement of fees, — That the 
full amount of the fees collected under this Act 
shall be turned over to the State Treasury by the 
Commissioner of Vehicles within thirty days 
after collection, in such manner as the State 
Treasurer may prescribe, and that it shall be the 
duty of the State Treasurer to set aside from said 
fees the sum authorized by the budget-sheet as 
prescribed under section 21 thereof. 

§ 1770(60v). Salary Commissioner of Motor 
Vehicles. — The Secretary of State is hereby au- 
thorized to employ a clerk whose duty it shall be 
1o keep a full record of all motor-vehicle owners 
in a book to be kept for that purpose. He shail 
file registration alphabetically by counties, and 
shall furnish each year to the county commissioner 
or ordinaries, and also the tax-receivers of the 
several counties, a list of all owners of motor- 
vehicles of their respective counties who have 
registered in this office. He shall perform any 
and every duty pertinent to his office under the 
direction of the Secretary of State. The salary of 
said clerk shall be two hundred dollars per month, 
payable out of the fees received for the registra- 
tion of motor-vehicles; and the salary of the 
Commissioner of Motor Vehicles shall be one hun- 
dred and fifty dollars per month, payable out of 
the fees received for the registration of motor 
vehicles. 

§ 1770(60w). Throwing things on highways.— 

That every owner or operator of a machine shall 
have equal rights upon the highways of this State 
with all other users of such highways; and no per- 
son or peisons shall throw glass, nails, tacks, or 
other obstructions upon the public highways used 
and traversed by automobiles, or unreasonably ob- 
struct or impede the right of travel of such owner 



or operator while operating, propelling, or driving 
such machine; and no person or persons shall give 
any signal or signs of distress or danger or call 
for assistance upon a person lawfully operating 
an}^ such machine on any of the public highways 
of this State, maliciously and without reasonable 
cause for so doing. 

§ 1770(60x). Sheriff's duties defined — inspector. 

— That the Commissioner of Vehicles shall at least 
twice in each year call the attention of the sheriff's 
constables, and marshals in this State, to the pro- 
visions of this Act, and furnish once each quarter 
to the sheriffs and clerks of the county commis- 
sioners of each county, for file in his office, a list 
of such vehicles as are registered from the county 
in which said sheriff and clerk hold office; and it 
shall be the duty of all local authorities in every 
county to make investigation as to the violation of 
the provisions of this Act, and said local authorities 
shall have authority, and it is hereby made their 
duty, to swear out warrant and prosecute any and 
all owners of motor vehicles who violate any of 
the provisions of this Act. The cost of the 
sheriffs, constables, and marshals shall be paid in 
the same manner as other criminal costs are paid 
under the law. 

§ 1770(60y). Deputies from highway depart- 
ment, to enforce law. — It shall be the duty of the 
Commissioner of Vehicles to deputize such em- 
ployees of the State Highway Department as may 
be requested by the State Highway Board, for 
the purpose of enforcing the provisions of this 
Act. The State Highway Board is hereby au- 
thorized to select from its employees men to be 
deputized by the Commissioner of Vehicles, and 
such deputies are hereby given the necessary 
police powers for the purpose of enforcing this 
Act. There shall be a motor-vehicle license in- 
spector to be appointed by the Secretary of State, 
who shall have authority to swear out warrants 
for violations of the motor-vehicle law, and to 
perform any other duty required by the Secretary 
of State. . 

§ 1770(60z). Penalty for violation of this Act. — 

Any person violating the provisions of this Act 
shall be deemed guilty of a misdemeanor, and up- 
on conviction thereof shall be punished as for a 
misdemeanor. It is the duty of every arresting 
officer both county, municipal and State, to en- 
force the provisions of this Act. 

§ 1770(60aa). Civil action not abridged. — No- 
thing in this Act shall be construed to curtail or 
abridge the right of any person to prosecute a 
civil action for damages sustained by reason oi 
injury to a person or property, resulting from the 
negligent use of the public streets or highways by 
a motor-vehicle or motorcycle, or by its owner, his 
employee, or by any other operator thereof. 

§ 1770 (60bb). Constitutionality of Act. — That 
should any of the provisions of this Act be heid 
illegal or unconstitutional, the same shall not 
vitiate the remaining provisions of said Act, but* 
all such provisions not held illegal or unconstitu- 
tional shall remain of full force and effect. 

§ 1770(60cc). When effective. — This Act shail 
not take effect until February 1st, 1928; provided, 
however, that section 1770(60h) shall take 



[54] 



§ 1770(61) 



INSPECTION OF OILS 



§ 1814(8) 



effect on such date subsequent to February 1st, 
1928, as the Commissioner of Vehicles in his di- 
rection finds practicable. 



ARTICLE 5 
Title Registration Act 
§ 1770(61). Interest rate. 

Persons to Whom Applicable. — Even the criminal pro- 
cedure provided in this act refers only to those who may 
obtain license and qualify under the provisions of the act. 
Bennett v. Bennett, 161 Ga. 936, 949, 132 S. E- 528. From 
dissenting opinion. 

Penalty for Violation of Section. — This act makes no pro- 
vision for any penalty for a violation of this section. Wil- 
liams v. Yarbrough,* 34 Ga. App. 500, 130 S. E- 361. 

Equitable Relief. — There is no provision in this act giving 
the superintendent of banks the power necessary to the 
maintenance of a suit seeking relief in equity. The case is 
controlled by the holding in Bentley v. Board, 162 Ga. 836; 
Bennett v. Bennett, 161 Ga. 936, 938, 132 S. E. 528. 

The borrower could set up in defense of the action of 
trover by the lender the grounds of equitable relief that in 
making the loan the lender did not comply with this act, 
and that the loan contract was void because the lender 
collected a greater sum as interest than the statute author- 
ized. Calhoun v. Davis, 163 Ga. 760, 137 S. E. 236. 



CHAPTER 18 
Making Loans 
§ 1770(76). Salary assignments. 

Transactions to Which Applicable. — This act nullifies and 
precludes enforcement of certain loans and salary assign- 
ments given to secure the same when made in contraven- 
tion of its provisions as to special licensing by the State 
bank examiner and as to rates of interest or discount. Mc- 
Eamb v. Phillips, 34 Ga. App. 210, 213, 129 S. E- 570. 

Same — Absolute Unconditional Sale of Salary. — This act 
does not cover a bona fide assignment or sale of wages or 
salary. McLamb v. Phillips, 34 Ga. App. 210, 213, 129 S. 
E. 570. Citing Tollison v. George, 153 Ga. 612 (1), 614, 112 
S. E. 896; Atlanta Joint Terminals v. Walton Discount Co., 
29 Ga. App. 225, 227, 114 S. E. 908. 

Same — Effect upon Sections 3446-3465. — Nothing in this 
act or in other legislation has apparently either expressly 
or by implication repealed the law of 1904, §§ 3446-3465, so 
far as it relates to a business of actual and bona fide buying 
of wages or salaries. That original act, to this extent, there- 
fore, remains in full force. McLamb v. Phillips, 34 Ga. 
App. 210, 213, 129 S. E. 570. 



TITLE THIRTEENTH 

Regulations for Particular Branches of Trade 
Agriculture 



CHAPTER 1 
Inspection 



ARTICLE 2 

Inspection of Oils 

§§ 1800 to 1814. Repealed by the Acts of 1927 
pp. 279, herein codified as §§ 1814(4) et seq. 

§ 1814(4). "Gasoline," "kerosene," defined. — 

The word "gasoline" used in this Act shall em- 
brace and include gasoline, naptha, benzol, and 
other products of petroleum under whatever name 
designated, used for heating or power purposes. 
The word "kerosene" shall embrace and include 
kerosene and other products of petroleum undei 
whatever name designated, used for illuminating, 
heating, or cooking purposes. Acts 1927, p. 279. 



§ 1814(5). Inspection of gasoline and kerosene. 

— For the purpose of the Act all gasoline and kero- 
sene sold, offered or exposed for sale in this State, 
shall be subject to inspection and analysis as here- 
inafter provided. All manufacturers, refiners,, 
wholesalers, and jobbers, before selling or offer- 
ing for sale in this State any gasoline or kerosene, 
or the like products, under whatever name desig- 
nated, for power, illuminating, heating, or cooking 
purposes, shall file with the Comptroller-General a 
declaration or statement that they desire to sell 
such products in this State, and shall furnish the 
name, brand, or trademark of the products which 
they desire to sell, together with the name and 
address of the manufacturer thereof, and that all 
such products are in conformity with the distilla- 
tion test hereinafter provided. 

§ 1814(6). Approval by State Oil Chemist and 
Comptroller-General. — All materials, fluids, or 
substances offered or exposed for sale, purporting 
to be substitutes for, or motor-fuel improvers, or 
other motor fuels to be used for power, cooking, or 
heating purposes, shall, before being sold, ex- 
posed, or offered for sale in this State, be sub- 
mitted to the Comptroller-General for examina- 
tion and inspection, and shall receive the approval 
of the state Oil Chemist hereinafter provided for, 
and the Comptroller-General, and then shall be 
sold or offered for sale only when properly labeled 
with a label, the form and contents of which has 
been approved by the State Oil Chemist and 
Comptroller-General. 

§ 1814(7). Illegal sale; confiscation. — The sale 
or offering for sale of all such gasoline and kero- 
sene as hereinbefore enumerated and designated,, 
used or intended to be used for power, illuminat- 
ing, cooking, or heating purposes, when sold un- 
der whatever name, which shall fall below the 
standard hereinafter provided, is hereby declared 
to be illegal, and same shall be subject to confisca- 
tion and destruction by order of the Comptroller- 
General. 

§ 1814(8). Containers and labels. — Every per- 
son, firm, corporation, or association of persons, 
delivering at wholesale or retail any gasoline in 
this State, shall deliver the same to the purchaser 
only in tanks, barrels, casks, cans, or other con- 
tainers having the word "gasoline," plainly 
stenciled or labeled in vermilion red, in English. 
Such dealers shall not deliver "kerosene oil" in 
any barrel, cask, can, or other container which 
has been stenciled or labeled, that has ever con- 
tainer gasoline, unless such barrel, cask, can, or 
other container shall have been thoroughly cleaned 
and all traces of gasoline removed. Every pur- 
chaser of gasoline for use or sale shall procure 
and keep the same only in tanks, barrels, casks, 
cans, or other containers stenciled or labeled as 
heretofore provided; every person delivering at 
wholesale or retail any "kerosene" in this State 
shall deliver same to the purchaser only in tanks, 
barrels, casks, cans, or other containers having the 
word "kerosene" in English, plainly stenciled or 
labeled in vermilion red, and every person pur- 
chasing for use or sale shall procure and keep the 
same only in tanks, barrels, casks, cans, or other 
containers stenciled or labeled as heretofore pro- 
vided. Nothing in this section shall prohibit the 
delivery of gasoline by hose or pipe from a tank 



[55] 



1814(9) 



INSPECTION OF OILS 



§ 1814(13) 



directly into the tank of any automobile or other 
motor. In cases where gasoline or kerosene is 
sold in bottles, cans, or other containers of not 
more than one gallon, for cleaning and other 
similar purposes, such bottles, cans, or other 
containers shall bear label with the words, "un 
safe when exposed to heat or fire." 

§ 1814 (9). Notice as to shipments; samples. — 

When gasoline or kerosene is shipped into the 
State of Georgia in any manner whatever, the 
manufacturer, refiner, or jobber shall promptly 
give notice to the Comptroller-General of the date 
of shipment, and shall furnish a sample of not less 
than eight ounces of the gasoline or kerosene 
shipped and labeled, giving the tank-car number, 
truck number or other container number, with the 
name and address of the person, company, firm, 
or corporation and to whom it is sent, and the 
number of gallons contained in the shipment made. 
In each instance where gasoline or kerosene is 
shipped in tank-cars, the record of the tank-car 
furnished by the railroad companies as to the 
capacity of each tank-car will be accepted. 

§ 1814(10). Test or analysis for buyer. — Any 

person purchasing any gasoline, illuminating, or 
heating oils, from any manufacturer, refiner, job- 
ber, or vendor in this State, for his own use, may 
submit fair samples of said gasoline, illuminating, 
or heating oils to the Comptroller-General to be 
tested, or analyzed by the State Oil Chemist. In 
order to protect the manufacturer or vendor from 
the submission of spurious samples, the person 
selecting the same shall do so in the presence of 
two or more disinterested persons, which samples 
shall not be less than one pint in quantity, and 
bottled, corked, and sealed in the presence of 
said witnesses, and sample shall be placed in the 
hands of a disinterested person, who shall for- 
ward the same at the expense of the purchaser to 
the Comptroller-General; and upon the receipt by 
him of any such sample he is hereby required to 
have the State Oil Chemist to promptly test and 
analyze the same, and he shall return to such pui- 
chaser or purchasers a certificate of analysis, 
which, when verified by the affidavit of the State 
Oil Chemist, shall be competent evidence in any 
court of law or equity in this State. 

§ 1814(11). Sale without test; misdemeanor. — 

It shall be a misdemeanor for any manufacturer, 
refiner, vendor, jobber, or wholesaler to sell, ex- 
pose, or offer for sale any gasoline for heating or 
power purposes in this State, which does not 
comply with the following distillation test: 

1. Corrosion test. A clean copper strip shall not 
be discolored when submerged in the gasoline for 
3 hours at 122° F. 

2. Distillation range. When the first drop falls 
from end of the condenser, the thermometer shall 
not read more than 55° C. (131° F.) 

When 20 per cent, has been recovered in the 
receiver, the thermometer shall not read more 
than 10i5° C. (221° F.) 

When 50 per cent, has been recovered in the re- 
ceiver, the thermometer shall not read more than 
140° C. (284° F.) 

When 90 per cent, has been recovered in the re- 
ceiver, the thermometer shall not read more than 
200° C. (392° F.) 



The end point shall not be higher than 225° C. 
(437° F.) 

At least 95 per cent, shall be recovered as distil- 
late in the receiver from the distillation. 

3. Sulphur. Sulphur shall not be over 0.10 per 
cent. 

All the foregoing tests shall be made in accord- 
ance with the methods for testing gasoline con- 
tained in Technical Paper 323A, United States 
Government Bureau of Mines, Department of the 
Interior. 

It shall also be a misdemeanor for any manu- 
facturer, jobber, wholesaler, or vendor to sell, of- 
fer, or expose for sale any kerosene oil for use or 
intended to be used for heating, cooking, or power 
purposes, which does not comply fully with the 
following distillation test: 

1. Color. The color shall not be darker than No. 
16 Saybolt. 

2. Flash point. The flash point shall not be 
lower than 100° F. 

3. Sulphur. The sulphur shall not be more than 
0.125%. 

4. Flock. The flock test shall be negative. 

5. Distillation. The end point shall not be 
higher than 625° F. 

6. Cloud point. The oil shall not show a cloud 
at 5° F. 

7. Burning test. The oil shall burn freely and 
steadily for 16 hours, in a lamp fitted with a No. 
2 hinge burner. 

All of the foregoing tests for kerosene shall be 
made according to the methods for testing kero- 
sene contained in Technical Paper 323A, United 
States Government Bureau of Mines, Depart- 
ment of the Interior. 

Provided, that the Comptroller-General may 
from time to time change these specifications to 
agree with those adopted and promulgated iby the 
United States Government Bureau of Mines; 
provided further, that sixty days' notice shall be 
given all manufacturers, refiners, and jobbers do- 
ing business in this State, before any such 
changes shall become effective. 

§ 1814(12). State Oil Chemist; appointment, 
duties, salary. — The Comptroller-General is here- 
by required to appoint a chemist who shall be an 
expert oil analyst, and to be designated as the 
State Oil Chemist, whose duty it shall be to ana- 
lyze all samples of gasoline and kerosene, and all 
fluids purporting to be substitutes for, or motor- 
fuel improvers, or other like products of petro- 
leum, under whatever name is designated, and 
used for illuminating, heating, cooking, or power 
purposes, submitted by the Comptroller-General 
or any duly authorized inspector or inspectors. 
Said chemist shall hold office for a period of four 
years, unless sooner removed for cause, as here- 
inafter provided; and he shall receive a salary of 
$3,000.00 per annum, payable monthly. 

§ 1814(13). Oil inspectors; number, appoint- 
ment, term, salary, expenses. — The offices of 
general oil inspectors, State oil inspectors, and of 
all local oil inspectors are hereby abolished, and 
it shall be the duty of the Comptroller-General 
to appoint six oil inspectors, each of whom 

6] 



§ 1814(14) 



INSPECTION OF OILS 



§ 1814(18) 



shall receive a salary of $2,400.00 per annum, 
and shall be allowed an expense account not to 
exceed the sum of $2,400.00 each per annum, 
payable monthly. The inspectors herein provided 
for shall hold office for four years, unless sooner 
removed for cause, as hereinafter provided. 

§ 1814(14). Unlawful interest in sale, etc. — 

Any chemist or inspector who, while in office, 
shall be interested directly or indirectly in the 
manufacture or vending of any gasoline shall 
be guilty of a misdemeanor. 

§> 1814(15). Inspectors!* automobiles; daily re- 
ports. — All inspectors are hereby required to 
provide themselves, at their own expense, with 
automobiles equipped with accurate speedome- 
ters, and to make daily reports to the Comptrol- 
ler-General, covering all work performed, and 
monthly reports shall also be made, showing the 
following information: 

1. Name and number of towns visited. 

2. Number of inspections in each town. 

3. Number of miles traveled by rail. 

4. Number of miles traveled by automobile. 

5. Expenses incurred, with vouchers showing 
the amount spent for hotel bills, gasoline, oil, 
railroad fares, and incidentals necessary in the 
performance of their duties. 

6. Number of samples drawn, each kind. 

7. Number pumps inspected, and the numbers 
of the pumps. 

8 Number pumps condemned. 

9. Number of pumps in territory. 

§ 1814(16). Duty to collect and test samples. — 

The Comptroller-iGeneral is hereby empowered 
and it is made his duty to collect, or cause to be 
collected 'by his duly authorized inspectors, 
samples of gasoline, kerosene, or other illuminat- 
ing cooking, or heating oils sold, offered, or ex- 
posed for sale in this State, and to cause samples 
to be tested or analyzed by the State Oil Chemist 
hereinbefore provided for, for this purpose. 
And said State Oil Chemist is hereby required to 
report his finding to the Comptroller-General, 
together with a certificate of analysis of such 
gasoline, kerosene, or other like products of 
petroleum, under whatever name designated, and 
used for illuminating, heating, cooking, or power 
purposes. Such certificate of analysis, when 
properly verified by an affidavit of said State 
Oil Chemist, shall be competent evidence in any 
court of law or equity in this State. 

§ 1814(17). Registration of gasoline dealers. — 

Each and every dealer in gasoline, before selling, 
exposing, or offering for sale any gasoline in this 
State, and annually thereafter, shall be required 
to register and shall make known his desire to 
sell gasoline to the Comptroller-General, giving 
the name and manner and kind of pump or pumps 
he will use, and location of same, and keep said 
certificate or certificates of registration posted 
in a prominent and accessible place in his place of 
business where such gasoline is sold. The form 
of such certificate shall be designated and issued 
by the Comptroller-General. 

§ 1814(18). Inspector's duty as to pumps. — It 

[5 



shall be the duty of the inspectors herein provided 
for to familiarize themselves with the accuracy 
and adjusting devices on the various makes of 
self-measuring pumps in use in this State; they 
shall carefully inspect all of such pumps located 
in the territory assigned to them, at least once 
every ninety days; all such pumps found to 'be 
giving accurate measure with a variation of not 
exceeding four ounces from the actual measures 
on a measure of five gallons, he shall place a lead 
and wire seal, to be provided by the Comptroller- 
General, on the adjusting device or devices in 
such way that the adjustment cannot be altered 
without 'breaking the seal. Any pump' that is 
found to be giving inaccurate measure in excess 
of four ounces, the inspector shall then and there 
notify the operator of the pump, whether owner 
or lessee, to make the necessary adjustments, the 
inspector to lend his assistance with the standard 
measure provided for testing such pumps; after 
the adjustments have been made, the adjusting 
devices are to be sealed in the same manner as 
provided for those pumps found originally ac- 
curate. On all pumps that have apparently been 
altered for the purpose of giving short measure 
in excess of eight ounces on a measure of five 
gallons, or that cannot be adjusted within a 
range of eight ounces, either over or under, on a 
measure of five gallons, the inspector shall no- 
tify the operator of such pump, whether he be 
owner or lessee, that it must be immediately ad- 
justed, the inspector to lend his assistance with 
the standard measure for testing such pumps. 
Should the operator fail or refuse to then and 
there make such adjustments as are necessary to 
bring the measure within the allowed variation, 
the same shall be condemned and dismantled im- 
mediately by the inspector examining the same 
and such pump shall not again 'be allowed oper- 
ated in this State without the written consent of 
the Comptroller-General. Inspectors shall be re- 
quired to report to the Comptroller-General im- 
mediately the name and number of all pumps con- 
demned and dismantled. Any person, company, 
firm, or corporation who shall reinstall and oper- 
ate any pump, without the written consent of 
the Comptroller-General, which has been con- 
demned by a duly authorized inspector herein 
provided, because of giving short measure in ex- 
cess of eight ounces to a measurement of five 
gallons, shall be deemed guilty of a misdemeanor, 
and upon conviction be punished as prescribed 
by section 1065 of the Penal Code of Georgia of 
of 1910. When any pump is condemned under 
the provisions of this Act by any inspector, it 
shall be the duty of the inspector to immediately 
make affidavit, before the ordinary of the county 
in which the pump is located, that the said pump 
is being operated by the person who shall be 
named in the affidavit, contrary to law; and 
thereupon the ordinary shall issue an order to 
the person named in the affidavit to show cause 
before him on the day named in the order 
not more than ten days nor less than three 
days from the issuance of the order, why the said 
pump should not be confiscated and dismantled. 
On the day named in the order, it shall be the 
duty of the said ordinary to hear the respective 
parties and to determine whether or not the pump 

7] 



§ 1914(19) 



INSPECTION OF OILS 



§ 1814(26) 



has been operated contrary to the provisions of 
this Act; .and if the said ordinary shall find that 
the said pump has been so operated, then he 
shall forthwith issue an order adjudging the pump 
to be forfeited and confiscated to the State of 
Georgia, and direct the sheriff of the county to 
dismantle the said pump and take same into his 
possession, and, after ten days' notice by post- 
ing or publication, as the court may direct, to 
sell the pump to the highest bidder for cash; the 
proceeds to said! sale, or as much therefor as is 
necessary, shall be used by the sheriff, first, to 
pay the cost, which shall be the same as in cases 
of attachment, and thereupon pay over and de- 
liver the residue, if any there be, to the person 
from whose possession the pump shall have been 
taken. On and after the passage of this Act, it 
shall be unlawful for any self-measuring pump, 
which can be secretly manipulated in such man- 
ner as to give short measure, to be installed or 
operated in this State. Any person, company, 
firm, or corporation who shall install or operate 
a self-measuring pump in this State which has a 
device or other mechanical means used for the 
purpose of giving short measure, shall, upon con- 
viction thereof, be punished as provided in section 
1065 of the Penal Code of Georgia of 1910, and 
such inaccurate self-measuring pump shall be 
condemned as heretofore provided in this section, 
and thereafter it shall be unlawful for any person 
to sell any kerosene, or gasoline from such pump 
until such pump shall have been made or altered 
so as to comply with the provisions of this Act, 
and shall have been inspected and approved for 
service by an inspector. After the passage of 
this Act it shall be unlawful for any one to break 
a seal applied by an inspector to a pump, with- 
out first securing consent of the Comptroller- 
General, which consent may be given through 
one of the duly authorized inspectors. 

§ 1914(19). Access for inspection. — In the per- 
formance of their duties, the Comptroller-Gen- 
eral, or any of his duly authorized agents, shall 
have free access at all reasonable hours to any 
store, warehouse, factory, storage house, or rail- 
way depot, where oils are kept or otherwise 
stored, for the purpose of examination or inspec- 
tion and drawing samples. If such access be 
refused by the owner, agent of such premises or 
other persons occupying and using the same, the 
Comptroller-General, or his duly authorized in- 
spectors or agents, may apply for a search war- 
rant, which shall be obtained in the same manner 
as provided for obtaining search warrants in 
other cases. Their refusal to admit an inspector 
to any of the above-mentioned premises during 
reasonable hours shall be construed as prima 
facie evidence of a violation of this Act. 

§ 1814(20). Violation of Act or of rule; pen- 
alty. — Any person, or association of persons, 
firm, or corporation, who shall violate any of the 
provisions of this Act, or any rule or regulation 
promulgated by the Comptroller-General for the 
enforcement of this Act, shall upon conviction 
thereof be punished as for a misdemeanor, as pre- 
scribed in section 10G5, of Penal Code of Georgia 
of 1910. 

§ 1814(21). Removal of chemist or inspector; 



charges in writing. — The State Oil Chemist, or 
oil inspectors provided for herein, may be re- 
moved or discharged for misfeasance or malfeas- 
ance in office, incompetency, or other good cause, 
by a majority vote of the Governor of the State 
the Attorney-General, and Comptroller-General, 
after the preferment of charges in writing served 
on any one of said officials not less than ten days 
prior to the date which may be set by said Comp- 
troller-General, Governor, and Attorney-General, 
or a majority of them. Charges may be prefer- 
red by any one of the three last-named officials, 
or any citizen of the State, and from the decision 
of said officials or majority of them, there shall 
be no appeal. 

§ 1814 (22). Expense of equipment, supplies, 
clerical help, etc., allowance for; limits — In ad- 
dition to the salary and expenses of inspectors as 
provided in section 1814(13) there shall be 
allowed such further sums for the purchase of 
equipment, supplies, and clerical help, and to pay 
any other of the expenses incident to and neces- 
sary for the enforcement of this Act, as may 
hereafter be appropriated; but the total of such 
expenses shall not exceed the sum of $20,000.00 
annually; so that including all salaries as herein 
provided, and for the enforcement of said Act, 
the total appropriation shall not exceed the sum 
of $51,800.00. The Comptroller-General is here- 
by constituted as chief Oil Inspector of this State, 
tor the purpose of the enforcement of this Act, 
and his salary therefor is hereby fixed at the sum 
of twelve hundred dollars ($1,200.00) per annum, 
to be paid out of the aforesaid total sum of $51,- 
800.00. 

§ 1814(23). Salaries and expense accounts; 
how paid. — The salaries of the State Oil Chemibt 
and of the inspectors and all of the expenses 
herein provided for shall be paid out of the treas- 
ury on warrants signed by the Governor, by req- 
uisition of the Comptroller-General, accompanied 
by itemized statements and vouchers for said 
salaries and expenses. The expense accounts of 
said oil inspectors shall be verified under oath and 
furnished by said Comptroller-General along with 
the requisitions. 

§ 1814 (24). Entire time of chemist and inspec- 
tors to be given to duties; bonds. — The State OH 
Chemist and the six oil inspectors herein provided 
for shall devote their entire time to the duties of 
their respective offices; and each shall give bond, 
with some good and solvent surety company and 
in such sum as may be approved by the Comp- 
troller-General, for the faithful discharge of the 
duties of their respective offices; the premiums on 
which shall be paid out of the expense fund of 
$20,000.00 in this Act provided for. 

§ 1814 (25). No inspection fees. — No inspec- 
tion fees of any kind or character shall hereafter 
be paid for the inspection of gasoline or kerosene. 

§ 1814 (26). Vacancies in offices. — The Comp- 
troller-General shall be and is hereby authorized 
to fill any vacancies which may occur in the 
offices of State Oil Chemist and Oil Inspector, on 
account of death, resignation, or other cause. 



[58] 



§ 1844 



REAL ESTATE BROKERS AND SALESMEN 



§ 1896(13) 



CHAPTER 3 
Regulations, Agriculture, etc. 



ARTICLE 1 

Cotton, Rice, etc. 

§ 1844. (§ 1601). Scalesmen, weigher's of cot- 
ton, and others to be sworn. 

Admissibility of Testimony of Unsworn Scalesman. — The 

testimony of a scalesman as to the weight of a commodity 
sold by him is not rendered inadmissible because he has not 
subscribed to the oath required of him as a scalesman of 
such a commodity under this section. Buckeye Cotton-Oil 
Co. v. Murphy & Sons, 34 Ga. App. 363, 129 S. E. 553. 

§ 1851. (§ 1608.) Produce not taxable by cities 
or towns. 

Mineral water is not a farm product within the meaning 
of this section. Pratt v. Macon, 35 Ga. App. 583, 134 S. £. 191. 



CHAPTER 5 

Peddling 

§ 1888. (§ 1S42.) Disabled soldiers to peddle 
without a license. 

Exemption Not Based on Certificate. — The right of a dis- 
abled or indigent soldier of the late European war to con- 
duct business in a town or city without paying license for 
the privilege of so doing is based upon the fact that the 
owner of the business is such soldier, and not on the cer- 
tificate of the ordinary, which is intended to furnish suffi- 
cient proof of said fact, and not as a condition precedent 
to the exercise of the right. Coxwell v. Goddard, 119 Ga. 
369, 46 S. E. 412; Fairburn v. Edmondson, 162 Ga. 386, 134 
S. E- 51; Jones v. Macon, 36 Ga. App. 97, 98, 135 S. E. 517. 

Indigency of Disability — When Cause of Exemption 
Ceases. — There is nothing in this section which provides for 
exemption after the indigency or cause of exemption ceases 
to exist. The act provides that the said certificate, stating 
the fact of his being [not having been in the past] such 
indigent soldier shall constitute sufficient proof. Jones v. 
Macon, 36 Ga. App. 97, 98, 135 S. E- 517. 

Cannot Certify to Permanent Indigency. — While the or- 
dinary might be able to certify to a patent, permanent phy- 
sical disability, he necessarily could not certify that a per- 
son would always be indigent. Jones v. Macon, 36 Ga. App. 
97, 98, 135 S. E. 517. 

When Tax Is Due Prior to Issuance of Certificate. — The fact 
that the license tax had become due before the certificate 
had been issued does not render such soldier liable there- 
for, if in fact he was a disabled or indigent soldier of said 
war and a resident of this state at the time the license tax 
was imposed, especially where he had applied for such 
certificate before the license tax had become due. Fair- 
burn v. Edmundson, 162 Ga. 386, 134 S. E- 51. 

Soldier's License Used to Avoid Tax. — Where it was 
found that the defendant was running a business himself, 
deriving the profits from it, and was merely attempting 
to use a soldier's license, granted to a Confederate soldier, 
as a shield to protect him from paying a license tax to the 
City of Atlanta and the State, the action of the judge of the 
superior court in refusing to sanction a certiorari was sus- 
tained. Lacy v. Atlanta, 34 Ga. App. 453, 454, 130 S. E- 74. 



CHAPTER 5B 
Real Estate Brokers and Salesmen 

§ 1896(5). "Real estate broker" and "real es- 
tate salesman" defined; provisions, where inap- 
plicable. — Whenever used in this article, "real es- 
tate broker" means any person, firm or corpora- 
tion, who, for another and for a fee, commission 
or other valuable consideration, sells, exchanges, 
buys, rents, or offers or attempts to negotiate a 
sale, exchange, purchase, or rental, of any estate 
or interest in real estate, or collects, or offers or 
attempts to collect rent for the use of real estate. 
The term shall include any person, firm, or cor- 



poration advertising through signs, newspapers or 
otherwise, as conducting a real estate office or 
real estate business. Provided, however, this pro- 
vision shall not be construed to include the sale or 
subdivision into lots by the bona fide fee-simple 
holder of any tract or parcel of land. 

A "real estate salesman" means a person em- 
ployed by a licensed real estate broker to sell or 
offer for sale, to buy or offer to buy, to negotiate 
the purchase, sale or exchange of real estate, or 
to lease, rent, or offer to lease, rent or place for 
rent any real estate for or on behalf of such real 
estate broker. The term shall include any other 
than bookkeepers and stenographers employed by 
any real estate broker, as real estate broker is 
defined in the preceding paragraph of this section. 

The provisions of this Act shall not apply to 
any person, firm or corporation, who, as owner or 
lessor, shall perform any of the acts aforesaid 
with reference to property owned by them. Nor 
shall the provisions of this Act apply to persons, 
firms, or corporations, not real estate brokers or 
real estate salesmen, holding a duly executed 
power of attorney from the owner for the sale, 
leasing or exchanging of real estate; nor shall 
said provisions be held to apply to a receiver or 
trustee in bankruptcy, an administrator, or exec- 
utor, or trustee, or any person selling real estate 
under order of court, or pursuant to the terms of 
a will, mortgage, or deed of trust, or deed to secure 
a debt. Acts 1925, pp. 325, 326; 1927, p. 307. 

Editor's Note. — The last two sentences of the first para- 
graph and the last sentence of the second paragraph of this 
section, were added by the amendment of 1927. 

The 1927 Act is cumulative to the former law and repeals 
it only when expressly stated. See § 25 of the Act. 

§ 1896(13). Fees for licenses.— The fees for li- 
censes shall be as follows: For a broker's license, 
the annual fee shall be $25.00 r If the licensee be a 
corporation, the license issued to it shall entitle 
one official or representative thereof to engage in 
the business of a real estate broker within the 
meaning of this act. For all other officers or rep- 
resentatives of a licensed corporation who shall 
engage in the business of a real estate broker with- 
in the meaning of this, the annual fee shall be 
$10.00. If the licensee be a co-partnership, the 
license issued to it shall entitle one member of 
said co-partnership to engage in the business of 
a real estate broker within the meaning of this 
Act. For every other member of such co-part- 
nership, the annual fee shall be Ten Dollars. 

For a salesman's license, the annual fee shall 
be Five Dollars. All applications for license shall 
be accompanied by the license fee as herein pro- 
vided, and all licenses shall expire upon the 31st 
day of December of each year. All applications 
made during the year to expire December 31st of 
said year. The fees required of brokers and sales- 
men under this act shall be the full annual fee for 
all licenses applied for by or before June 30th of 
any calendar year; and one-half the annual fee 
for all licenses applied for between July 1st and 
December 31st of any calendar year. Provided 
that this section shall not be construed to prevent 
municipalities from assessing license fees. Acts 
1925, pp 325, 332; 1927, p. 308. 

Editor's Note. — The annual fee for salesman's license was 
reduced from ten to five dollars, by the amendment of 1927. 
The original last sentence which provided that the fee charged 
shall be prorated on monthly basis, was stricken, and the 
present last sentence was added, by the same amendment. 



[59 1 



§ 1963 



MISCELLANEOUS PROVISIONS 



§ 2047 



CHAPTER 9 
State Geologist 
§ 1963. (§ 1712.) State geologist. 

Cited in annotations to Myers v. U. S., 272 U. S. 52, 1249. 



CHAPTER 12 

Protection of Trademarks, and Names of Benevo- 
lent Organizations 

§ 1993. Name and style of benevolent and other 
associations. 

Presumption as to Fraud. — If the association or corpora- 
tion first appropriating and using the name has a clear right 
to its use, its subsequent use by another corporation know- 
ing of the right is presumed to be fraudulent. Graves v. 
District Grand Lodge No. 18, 161 Ga. 110, 129 S. E. 783. 

Sufficiency of Proof. — In a case where it is charged that 
one beneficial incorporated association is using a name 
which by prior use appertains to another fraternal organi- 
zation, mere proof by the plaintiff that the defendant was 
using the name which it had adopted to distinguish it from 
similar organizations would not entitle the plaintiff to re- 
lief. Graves v. District Grand Lodge No. 18, 161 Ga. 110, 
129 S. E. 783. 

§ 1994. Injunction against infringement. 

Enjoined In Toto. — When it is made to appear that the 
name in question is being used, or indeed if it is shown that 
it can be used, to mislead the public and induce the belief 
that the association which is using the name which another 
is justly entitled to use, the defendant should be enjoined 
from the use of this name in toto, and not merely partially 
enjoined. Graves v. District Grand Lodge No. 18, 161 Ga. 
110, 129 S. E. 783. The addition of the suffix "incorporated" 
is not sufficient relief. Id. 

Same — Ritual, Passwords, etc. — In Graves v. District 
Grand Lodge No. 18, 161 Ga. 110, 129 S. E- 783, it was 
further stated that, "It was further error to omit or re- 
fuse to enjoin the use by the defendant of the ritual, pass- 
words, signs, tokens, etc., of the national order." 



ARTICLE 3 

Gates 

§ 2034. (§ 1775.) Impounding animals, how dis- 
posed of; and damages, how assessed. 

Construed with Section 2082(11) — Quarantining and Dip- 
ping.— In Gill v. Cox, 163 Ga. 618, 624, 137 S. E- 40, Mr. 
Justice Hines speaking for the court, said: "Section [2082- 
(11)] and [this section] when construed together, furnish 
the owner of animals impounded under that section an ade- 
quate remedy for contesting the amount of expense claimed 
by the local inspector for quarantining and dipping such 
animals. 

It was the intention of the legislature to make this rem- 
edy applicable to an inspector who impounds cattle under 
section 2082(11). So. if such inspector and the cattle - 
owner can not agree upon the amount of expense in- 
curred by the inspector in having the animals of the de- 
faulting owner quarantined and dipped, then the inspector 
must resort to the remedy provided in this section for the 
recovery of such expense. He can not advertise and sell 
them without such proceedings. If the cattle-owner wishes 
to replevy his animals so impounded, and thus lessen the 
expense of keeping them thereafter impounded, he can give 
the bond provided for in said section. Gill v. Cox, 163 
Ga. 618, 625, 137 S. E. 40. 



FOURTEENTH TITLE 
Inclosures and Stock 



ARTICLE 6 

Election for no Fences 

§ 2042(2) Exemption of mountain districts from 
no-fence or stock law; election as to. — In those 

[60] 



several counties of the mountain region of Georgia 
wherein the consent of the State of Georgia has 
been given to the United States for the acquisi- 
tion of land for the establishment of National 
Forest Reserves, where any area composed of 
three or more militia districts, in which the United 
States has acquired a majority of the forest lands, 
which area is isolated from other stock law or 
no-fence territory by reason of natural barriers 
such as mountain ranges, or which is adjacent to 
non-stock law or fence-law territory, and located 
in counties which heretofore or may hereafter vote 
in favor of county-wide stock law or no-fence law, 
may be exempted from the operation of the stock 
law or no-fence law when a majority of the law- 
ful voters of said area vote in favor of the same. 
Acts 1927, p. 217. 

§ 2042(3) Petition of freeholders.— It shall be 
the duty of the ordinary of the county wherein 
such area is located, when a petition is filed with 
him, signed by ten or more of the freeholders of 
the several militia districts located in said area, to 
hear and determine said petition; and if he is 
satisfied that the area described in said petition 
is so isolated from other stock-law territory or 
adjacent to non-stock-law territory, then it shall 
be his duty to call an election, giving notice of 
the same for twenty days in each of the districts 
named in said petition, by posting notices at three 
or more public places, and submit the question 
of "Fence" or "No fence" for said area to the 
qualified voters of the area described in said pe- 
tition, which election shall be held in each district 
embraced in the area, under the same rules and 
regulations governing the holding of elections for 
members of the General Assembly. If a ma- 
jority of the votes polled in said area at said elec- 
tion are for "Fence," then the same shall become 
operative and effective in said area ninety days 
from the date of said election, and said area shall 
then be exempt from the operation of county-wide 
stock law. Acts 1927, p. 218. 



ARTICLE 7 
Miscellaneous Provisions 
§ 2044. Stock-law fences legalized. 

Resolution by Commissioner Not Conclusive. — If there has 
been no honest effort made by the citizens of the district 
to build good fences and gates on or about the district line, 
and said fences and gates have not in fact been erected, a 
resolution of the county commissioners declaring that they 
have inspected the fences and gates so erected, and recogniz- 
ing and establishing such fences and gates as the boundary 
fence between the district and adjoining districts and as 
a legal fence within the purview of this section, is not con- 
clusive that such fence and gates have been erected; and 
it would be competent for the plaintiff, in a possessory-war- 
rant proceeding brought to recover some of his hogs which 
had been impounded by a resident of a district under the 
claim that the district was a no-fence or stock-law district, 
to show that no fence and gates had been erected on or 
about the district line. Parish v. Hendricks, 163 Ga. 385, 
136 S. IE,. 135. Such a resolution is, however, prima facie 
evidence of the facts contained therein. Id. 



§ 2047. (§ 1784.) Gates to be erected. 

Proper Gates Are Condition Precedent. — In no event shall 
the provisions of the stock law go into effect as the results 
of a militia district election, unless proper gates are so es- 
tablished in public and private roads. Parish v. Hendricks, 
163 Ga. 385, 136 S. E. 135. See notes of this case under § 
2044. 



§ 2064(1) 



DEPARTMENT OF AGRICULTURE 



§ 2067(1) 



ARTICLE 10 

Tuberculosis in Domestic Animals 

§ 2064(1) State Veterinarian's duty as to eradi- 
cation of tuberculosis in animals. — It shall be the 
duty of the State Veterinarian to eradicate tuber- 
culosis of domestic animals within the State. To 
enable the State Veterinarian to eradicate bovine 
tuberculosis effectively, and to aid him in estab- 
lishing within the State a modified accredited 
tuberculosis-free area, in conformity with rules 
and regulations promulgated by the United States 
Livestock Sanitary Association and adopted by 
the Bureau of Animal Industry, United States De- 
partment of Agriculture, the county commission- 
ers of any county in which the State and Federal 
Governments jointly engage in a tuberculosis eradi- 
cation campaign may ' appropriate for aiding in 
said work such sums as the county commissioners 
or board of roads and revenues may deem adequate 
and necessary. The State Veterinarian shall have 
full and complete authority and responsibility in 
all livestock sanitary control work. The State 
Veterinarian, or his duly authorized agent, is here- 
by empowered to enter upon any premises, barn, 
lot, or any other place where cattle are kept, for 
the purpose of applying test with tuberculin to 
ascertain whether or not the animals so tested are 
affected with tuberculosis. The owners, or 
keeper of such cattle shall render such reasonable 
assistance as may be required to enable the State 
Veterinarian or his agent to apply the test with 
accuracy and dispatch. Acts 1927, p. 349. 

§ 2064(2) Notice to owner of animal. — Should 
the State Veterinarian receive information or have 
reason to believe that tuberculosis exists in any 
animal or herds of animals, he shall promptly 
notify the owner or owners and shall arrange to 
have such animal or animals tested by a qualified 
veterinarian. That all cattle which shall here- 
after react to a tuberculin test shall immediately 
after such reaction be branded on the left jaw 
with the letter "T," said letter to be not less than 
two inches in length, and in addition said reactors 
shall be tagged in the left ear with a special tag 
to be adopted by the State veterinarian. All cat- 
tle so identified shall be slaughtered within a pe- 
riod of fourteen days immediately following such 
reaction, such slaughter to be under the direction 
of the State Veterinarian in an abattoir where 
Federal or competent local meat inspection is 
maintained. The owners of such reactors to the 
tuberculin test shall be indemnified for such ani- 
mals, as hereinafter provided. 

§ 2064(3). Notice agreement on value. — Before 
having such reacting animal o^ animals slaugh- 
tered, it shall be the duty of the State Veterinarian 
to notify the owner of his findings as to the con- 
dition of said animal or animals; and if such ani- 
mal shall have been purchased by the owner not 
less than six months prior to the examination by 
said veterinarian, then the owner and said veterina- 
rian shall, if possible, agree on the value of such 
animal or animals so condemned. If said State 
Veterinarian or his agent and the owner of said 
animal or animals cannot agree as to the value of 
said animal or animals, then each will select a 
citizen from the county in which said animal or 
animals are located, to act in their place. These 
two arbitrators shall fix the value of such animal 



or animals, and in the event said two citizens can- 
not agree, then the United States Veterinary In- 
spector in charge of co-operative tuberculosis era- 
dication in Georgia shall act as umpire. In no 
case shall the value fixed by said owner and State 
Veterinarian, or by the arbitrators, exceed the 
amount at which said animal or animals were re- 
turned by the owner for taxation to State and 
County authorities, nor shall the value fixed in 
the case of a pure-bred cow or bull exceed $150.00, 
nor in case of a grade cow or bull the sum of $90.- 
00. Upon the value being fixed by agreement as 
hereinbefore provided, said owner shall be paid, 
within the limitations hereinbefore provided, 
jointly by the county commissioners out of county 
appropriations and by the United States Bureau 
of Animal Industry out of special Federal gov- 
ernment tuberculosis eradication funds now avail- 
able. 

§ 2064(4) Restriction of use or sale of tuber- 
culin. — No person, firm, or corporation shall ad- 
minister veterinary tuberculin, except qualified 
veterinarians. No person, firm or corporation 
shall sell, offer for sale or distribution, or keep on 
hand any veterinary tuberculin, except qualified 
veterinarians, licensed druggists or others law- 
fully engaged in the sale of veterinary biological 
products. "Qualified veterinarians" within the 
meaning of this Act shall be' veterinarians ap- 
proved by the State Veterinarian and the chief of 
the United States Bureau of Animal Industry for 
tuberculin testing cattle intended for interstate 
shipment. 

§ 2064(5) Annual Appropriation. — To enforce 
the provisions of this Act and to enable the State 
Veterinarian to eradicate bovine tuberculosis, to 
establish and maintain a modified accredited tu- 
berculosis-free area, and to develop the livestock 
industry within the State, the sum of twelve thou- 
sand, five hundred ($12,500) dollars annually, or 
as much thereof as may be necessary, be and the 
same is hereby appropriated. 

§ 2064(6). Penalty. — Any violation of any pro- 
visions of this Act is hereby made a misdemeanor, 
and shall be punishable by a fine of not less than 
twenty-five ($25.00) dollars for each offense. 



FIFTEENTH TITLE. 
Department of Agriculture. 



CHAPTER 1. 

Commissioner of Agriculture. 

§ 2066(1) Terms of commissioner. — Beginning 
January 1, 1929, the term of office of the Commis- 
sioner of Agriculture shall be for a period of 
two years, or until his successor is elected and 
qualified. Acts 1927, p. 207. 

Editor's Note. — The act of 1927 provides that the term of 
office of the commissioner shall expire December 31, 1928. 

§ 2067(1) Bond of Commissioner. — The , Com- 
missioner of Agriculture of the State of Georgia 
is hereby required to give a bond of fifty thou- 
sand ($50,000) dollars as a guaranty of the faith- 
ful performance of the duties of his office, and for 
the proper accounting for all monies, fees, etc., 
received bv the office, said bond to be furnished 



[61] 



§ 2079 



ADULTERATION OR MISBRANDING PROHIBITED 



§ 2119(11) 



by a surety company authorized to do business in 
Georgia by the laws of this State, provided said 
premium on said bond, shall be paid by the State 
of Georgia. Acts 1927, p. 206. 

§ 2079. Cattle-ticks — suppression of diseases. 

Quoted in Gill v. Cox, 163 Ga. 618, 622, 137 S. E. 40. 

§ 2081(2). Duties. 

Acceptance of Federal Regulation. — The act from which 
this section was taken and § 2082(11) amounts to an accept- 
ance of the regulations and methods of the Commissioners 
of Agriculture of United States under Act Cong. May 29, 
1884, section 3 (Comp. St. section 8691). Thornton v. United 
States, 2 Fed. (2d). 561. 

Cited in Gill v. Cox, 163 Ga. 618, 622, 137 S. E- 40. 

§ 2082(9). Dipping-vats and chemicals; man- 
damus. 

Applied in Colquitt County v. Bahnsen, 162 Ga. 340, 346, 
133 S. E- 871. 

§ 2082(10). Inspectors. 

Constitutionality — Remedy of Inspector for Expenses. — 

This section when construed in connection with section 
2034, furnishes the only remedy by which the local inspector 
can prosecute his claim for expenses incurred by dipping and 
caring for such animals, and in defense of such proceeding 
by the local inspector the owner had an ample remedy for 
contesting the amount of expense claimed by the local in- 
spector. This being so, this section is not unconstitutional 
upon the ground that it denies to the owner of animals so 
impounded due process of law. Gill v. Cox, 163 Ga. 618, 137 
S. E. 40. 

The enforcement of this section is not unreasonable so as 
to be unconstitutional upon the ground that it is a depriva- 
tion of due process of law. Gill v. Cox, 163 Ga. 618, 137 S. 
E- 40. 

§ 2082(11). Quarantine and dipping; notice; 
lien for expenses. 

As to this section being an acceptance of the Federal regu- 
lations, see note to § 2081(2). 

Constitutionality.— Gill v. Cox, 163 Ga. 618, 626, 137 S. E. 
40, conforms to the holding set out under this catchline in 
the Georgia Code of 1926. 

Failure of Owner to Pay Expenses after Three Days No- 
tice. — That part of the section which provides that "should 
the owner fail or refuse to pay said expenses after three 
days notice," does not authorize the inspector to sell the 
animals after advertising them for three days. The purpose 
of the notice is to afford the owner an opportunity to pay 
the expense, and avoid the cost of litigation provided in the 
above section of the Code. If, after the expiration of such 
three days notice, the owner does not pay this expense, 
the inspector must proceed as provided in this section. Gill 
v. Cox, 163 Ga. 618, 625, 137 S. W. 40. See notes of this 
case under § 2034. 

§ 2082(13). Quarantine along border of Florida 
and Alabama. 

Cited in Gill v. Cox, 163 Ga. 618. 137 S. E- 40. 

§ 2082(14). When reinfestation eradicated with- 
out expense to county. 

Entire Expense upon State. — In Colquitt County v. Bahn- 
sen, 162 Ga. 340, 348, 133 S. E- 871, Mr. Justice Hines speak- 
ing for the court said: "We think the true meaning of sec- 
tion 2 of the act of 1924 [this section] is to place upon the 
State the entire expense of eradicating any subsequent rein- 
festation of a tick-free county." In support of this holding 
the court refers to the caption of the Act of 1924, from 
which this section was taken, and to the fact that an appro- 
priation for the purpose had been made by the Legislature. 

Upon a failure of the state veterinarian to perform this 
duty it will be enforced by mandamus. 

The State veterinarian is required to eradicate ticks in 

reinfested counties without the previous determination of 

the commissioner of agriculture that such eradication is 
wise and best. Gill v. Cox, 163 Ga. 618, 137 S. E- 40. 



CHAPTER 3. 
Adulteration or Misbranding Prohibited 



ARTICLE 9. 

Sanitation of Food Places. 

§ 2119(3). Supervision of state veterinarian over 
slaughter house, dairies, etc.; report and statistical 
bulletin. 

Slaughter houses are subjects to sanitary regulations. 
Schoen Bros. v. Pylant, 162 Ga. 565, 571, 134 S. E. 304. 



ARTICLE 10. 

Apples and Peaches; Grades and Marks. 

§ 2119(9). Commissioner^ of Agriculture to es- 
tablish grades and marking rules. — The Commis- 
sioner of Agriculture is hereby directed to estab- 
lish and promulgate from time to time official 
standard grades for all closed packages of peaches 
and apples, by which the quantity, quality, and 
size may be determined, and prescribe and pro- 
mulgate rules and regulations governing the 
marking which shall be required upon packages 
of peaches and apples for the purpose of show- 
ing the name and address of the producer or 
packer, the variety, quantity, quality, and size of 
the product, or any of them; provided that the 
Commissioner of Agriculture shall establish a 
grade for immature apples, and an unclassified or 
similar marking for all peaches and apples not in- 
cluded in the other grades established. Acts 1927, 
p. 191. 

§ 2119(10). Packages to be marked; stamps. — 

Whenever such standard for the grade or other 
classifications of peaches or apples under this Act 
becomes effective, every closed package contain- 
ing peaches or apples grown and packed for sale 
or transported for sale by any person, firm, com- 
pany, or organization, shall bear conspicuously 
upon the outside thereof, in plain words and fig- 
ures, such markings as are prescribed by the Com- 
missioner of Agriculture under the provisions of 
this Act. Every crate or package of peaches or 
apples shipped from any point within this State 
shall bear an adhesive stamp showing that they 
are classified under this Act, which stamp shall 
be sold by the commissioner of agriculture to ap- 
plicants therefor for not more than one half (%) 
of one (1) cent each. 

§ 2119(11). Inspection; appointment of inspec- 
tors. — The Commissioner of Agriculture of the 
State of Georgia shall be charged with the en- 
forcement of the provisions of this article, and 
for that purpose shall have the power: (a) to en- 
ter and to inspect personally, or through aiiy au- 
thorized agent, every place within the State of 
Georgia where peaches and apples are produced, 
packed, or stored for sale, shipped, delivered for 
shipment, offered for sale, or sold, and to inspect 
such places and all peaches and apples and con- 
tainers and equipment found in any such place. 
(b) to appoint, superintend, control, and discharge 
such inspectors and subordinate inspectors as in 
his discretion may be deemed necessary, for the 
special purpose of enforcing the terms of this 
Article, to prescribe their duties and fix their 
compensation, (c) Personally, or through any au- 



[62] 



§ 2119(12) 



OYSTERS AND OYSTER BEDS 



§ 2158(24) 



thorized agent or any such inspector, to forbid the 
movement of any closed package or packages of 
peaches or apples found to be in violation of any 
of the provisions of this Article, which have not 
been actually accepted by a common carrier for 
shipment in interstate traffic, and to require the 
same to be repacked or remarked. A carload of 
peaches or apples shall not be considered as ac- 
tually accepted by a common carrier for shipment 
until the loading is finished, the car sealed, and 
the bill of lading issued, (d) To cause prosecu- 
tion to be instituted for violations of this Article. 

§ 2119(12). Delivery prima facie evidence of offer 
to sell. — When peaches or apples in closed pack- 
ages are delivered to railroad station or a common 
carrier for shipment, or delivered to a storage 
house for storage, such delivery shall be prima 
facie evidence that the peaches or apples are of- 
fered or exposed for sale. 

§ 2119(13). Penalty. — Any person, firm, com- 
pany, organization, or corporation, who shall vio- 
late any of the provisions of this Article, shall be 
punishable by a fine of not more than five hun- 
dred dollars ($500.00), or imprisonment for a 
period not to exceed 90 days, either or both, for 
each offense. 

§ 2119(14). Dealers protected by inspection, etc. 

— No person, firm, or corporation shall be prose- 
cuted under the provisions of this Article, when 



he or it can be established that the peaches or 
apples offered for sale have passed inspection by 
an authorized inspector of the State of Georgia, 
and bear the official Georgia State inspection 
stamp, or by an inspector of the United States 
Department of Agriculture, and found to be 
packed and marked in accordance with the re- 
quirements of the Commissioner of Agriculture 
of Georgia. 

§ 211915). Unfit fruit not to be shipped.— 

No person in the State of Georgia shall ship any 
peaches which are immature, or peaches or ap- 
ples unfit for human consumption; and no apples 
or peaches shall be offered for sale within the 
State of Georgia which do not bear on the pack- 
ages the. marks and grades prescribed in section 
2119(10). 



SIXTEENTH TITLE. 
State Board of Game and Fish. 



CHAPTER 3. 
Oysters and Oyster Beds. 

§ 2158(24). Owners of private oyster beds may 
come under Act. 

Cited in Camp v. State, 34 Ga. App. 591, 130 S, E. 606, 



[63] 



THE CIVIL CODE 



FIRST TITLE. 
Of Persons. 



CHAPTER 1. 

Different Kinds of Persons, Their Rights and Du- 
ties. 



ARTICLE l. 
Of Citizens. 
§ 2159. (§ 1802.) Natural and artificial persons. 

Creation of Corporation Legislative Function. — A corpora- 
tion can be brought into existence only as the result of ex- 
press legislation. The conference of power upon persons to 
organize a corporation is legislative in character, and must 
be done by direct legislation, or be founded upon legislative 
or constitutional provisions. Free Gift Society v. Edwards, 
163 Ga. 857, 865, 137 S. E. 382. 



ARTICLE 3. 
Of Persons of Color. 

§ 2177. (§ 1820.) Who are persons of Color.— 

All negroes, mulattoes, mestizos, and their de- 
scendants, having any ascertainable trace of either 
negro or African, West Indian, or Asiatic Indian 
blood in their veins, and all descendants of any 
person having either negro or African, West In- 
dian, or Asiatic Indian blood in his or her veins, 
shall be known in this State as persons of color. 
Acts 1865-6, p. 239; 1927, p. 272. 

Editor's Note. — This section prior to its amendment was 
much less broad. It merely included negroes, mulatoas, 
mestizos, and their descendants, having one-eighth negro 
or African blood in their veins. 

§ 2177(1). Registration as to race. — The State 



§ 2177(3). Local registrar must cause each per- 
son in district to execute form., etc. — Each local 
registrar shall personally or by deputy, upon re- 
ceipt of said forms, cause each person in his dis- 
trict or jurisdiction to execute said form in dupli- 
cate, furnishing all available information required 
upon said form, the original of which form shall 
be forwarded by the local registrar to the State 
Registrar of Vital Statistics, and a duplicate de- 
livered to the orq^nary of the county. Said form 
shall be signed by the registrant, or, in case of 
children under fourteen years of age, by a parent, 
guardian, or other person standing in loco pa- 
rentis. The execution of such registration certifi- 
cate shall be certified to by the local registrar. 

§ 2177(4). Untrue statement. — If the local regis- 
trar have reason to believe that any statement 
made by any registrant is not true, he shall so 
write upon such certificate before forwarding the 
same to the State registrar or ordinary, giving his 
reason therefor. 

§ 2177(5). Penalty for refusal to execute regis- 
tration certificate, ei;c. — It shall be unlawful for 
any person to refuse to execute said registration 
certificate as provided in this Act, or to refuse to 
give the information required in the execution of 
the same; and any person who shall refuse to exe- 
cute such certificate, or who shall refuse to give 
the information required in the execution of the 
same, shall be guilty of a misdemeanor, and shall 
be punished as prescribed in section 1065 of the 
Penal Code of Georgia of 1910. Each such re- 
fusal shall constitute a separate offense. 

§ 2177(6). Fee for registration 30 cents; how 
divided. — The local registrar shall collect from 
each registrant a registration fee of thirty cents, 



Registrar of Vital Statistics, under the supervision fifteen cents of which shall go to the local regis 



of the State Board of Health, shall prepare a 
form for the registration of individuals, whereon 
shall be given the racial composition of such in- 
dividual, as Caucasian, Negro, Mongolian, West 
Indian, Asiatic Indian, t Malay, or any mixture 
thereof, or any other non-Caucasic strains, and if 
there be any mixture, then the racial composition 
of the parents and other ancestors in so far as 
ascertainable, so as to show in what generation 
such mixture occurred. Said form shall also give 
the date and place of birth of the registrant, 
name, race, and color of the parents of registrant, 
together with their place of birth if known, name 
of husband or wife of registrant, with his or her 
place of birth, names of children of registrant with 
their ages and place of residence, place of resi- 
dence of registrant for the five years immediately 
preceding registration, and such other information 
as may be prescribed for identification by the 
State Registrar of Vital Statistics. Acts 1927, 
p. 272. 

§ 2177(2). Supply of forms.— The State Regis- 
trar of Vital Statistics shall supply to each local 
registrar a sufficient number of such forms to 
carry out the provisions of this Act. 



trar and fifteen cents of which shall go to the 
State Board of Health, to be used in defraying ex- 
penses of the State Bureau of Vital Statistics. If 
any registrant shall make affidavit that through 
poverty he is unable to pay said registration fee of 
thirty cents, the local registrar shall receive a reg- 
istration fee of only ten cents for such registra- 
tion, which sum shall be paid out of the funds of 
the State Bureau of Vital Statistics, and the State 
Bureau of Vital Statistics shall receive no fee for 
such registration. This section shall not apply to 
the registration of births or deaths, the registration 
of which is otherwise provided for. 

§ 2177(7). False registration, felony; punish- 
ment. — It shall be a felony for any person to wil- 
fully or knowingly make or cause to be made a 
registration certificate false as to color or race, 
and upon conviction thereof such person shall be 
punished by imprisonment in the penitentiary for 
not less than one year and not more than two 
years. In such case the State registrar is author- 
ized to change the registration certificate so that 
it will conform to the truth. 

§ 2177(8). Form of application for marriage li- 
cense. — The State Registrar of Vital Statistics 



[64] 



§ 2177(9) 



PERSONS OF COLOR 



§ 2177(16) 



shall prepare a form for application for marriage 
license, which form shall require the following in- 
formation to be given over the signature of the 
prospective bride and groom; name and address; 
race and color; place of birth; age; name and ad- 
dress of each parent; race and color of each 
parent; and whether the applicant is registered 
with the Bureau of Vital Statistics of this or any 
other State, and, if registered, the county in which 
such registration was made. The State Registrar 
of Vital Statistics shall at all times keep the ordi- 
naries of each county in this State supplied with 
a sufficient number of said form of application for 
marriage license to care for all applications for 
marriage license. Each prospective bride and 
each prospective groom applying for marriage li- 
cense shall fill out and execute said application in 
duplicate. 

§ 2177(9). Filing application for marriage li- 
cense. — Upon such applications for marriage li- 
cense being filed with the ordinary by the prospec- 
tive bride and prospective groom, the ordinary 
shall forward the original of such application to 
the State Registrar of Vital Statistics, and retain 
the duplicate of such application in his files. 

§ 2177(10). Report by State Registrar of Vital 
Statistics after examination as to registration of 
applicant. — The ordinary shall withhold the issu- 
ing of any marriage license until a report upon 
such application has been received from the State 
Registrar of Vital Statistics. Said report from the 
State Registrar of Vital Statistics shall be for- 
warded to the ordinary by the next return mail, 
and shall state whether or not each applicant is 
registered in the Bureau of Vital Statistics; if 
registered, the report shall state whether the 
statements made by each applicant as to race and 
color are correct according to such registration 
certificate. If the registration certificate in the 
office of the Bureau of Vital Statistics show that 
the statement of either applicant as to race or 
color are untrue, the report of the State Registrar 
of Vital Statistics shall so state, and in such case 
it shall be illegal for the ordinary to issue a mar- 
riage license to the applicants, until the truth of 
such statements of the applicants shall have been 
determined in a legal proceeding brought against 
the ordinary to compel the issuing of such li- 
cense. If the report from the State Registrar of 
Vital Statistics shows that the applicants are not 
registered, and if the State Bureau of Vital Sta- 
tistics has no information as to the race or color 
of said applicants, then the ordinary shall issue the 
marriage license if he has no evidence or knowl- 
edge that such marriage would be illegal. If one 
of the applicants is registered with the State Bu- 
reau of Vital Statistics and the other applicant is 
not so registered, if the records of the Bureau of 
Vital Statistics contain no information to dis- 
prove the statements of either applicant as to 
color or race, then the ordinary shall issue the 
marriage license, if he has no evidence or knowl- 
edge that such marriage would be illegal. Pro- 
vided, that where each party is registered and such 
registration certificate is on file in the office of 
the ordinary of the county where application for 
marriage license is made, it shall not be necessary 
for the ordinary to obtain any information from 
the State Bureau of Vital Statistics; and provided 
further, that when any person who has previously 



registered as required herein moves to another 
county, he may file with the ordinary of the 
county of his new residence a certified copy of his 
registration certificate, which shall have the same 
effect as if such registration had been made origi- 
nally in said county. 

§ 2177(11). Application for marriage license by 
one not born in this State. — Where any application 
for marriage license shows that such applicant 
was not born in this State and is not registered 
with the Bureau of Vital Statistics of this State, 
the ordinary shall forward a copy of such appli- 
cation to the State Registrar of Vital Statistics 
of this State, and shall also forward a copy of 
the application to the clerk of the superior or cir- 
cuit court, as the case may be, of the county of 
the applicant's birth, and another copy to the Bu- 
reau of Vital Statistics, at the capitol of the State, 
of the applicant's birth, with the request that the 
statements therein contained be verified. If no 
answer be received from such clerk or Bureau of 
Vital Statistics within ten days, the ordinary shall 
issue the license if he have no evidence or knowl- 
edge that such marriage would be illegal. If an 
answer be received within ten days, showing the 
statement of such applicant to be untrue, the ordi- 
nary shall withhold the issuing of the license until 
the truth of such statements of the applicant shall 
have been determined in a legal proceeding brought 
against the ordinary to compel the issuing of such 
license. In all cases where answers are received 
from such clerk or Bureau of Vital Statistics, a 
copy of the answer shall be forwarded to the 
State Registrar of Vital Statistics of this State. 

§ 2177(12). Return of license after marriage — 
When a marriage license is issued by the ordinary, 
it shall be returned to the ordinary by the officer 
or minister solemnizing the marriage, and for- 
warded by the ordinary to the State Registrar of 
Vital Statistics, to be permanently retained by said 
registrar. 

§ 2177(13). "White person" defined.— The term 
"white person" shall include only persons of the 
white or Caucasian race, who have no ascertainable 
trace of either Negro, African, West Indian, Asiatic 
Indian, Mongolian, Japanese, or Chinese blood in 
their veins. No person shall be deemed to be a 
white person any one of whose ancestors has been 
duly registered with the State Bureau of Vital Sta- 
tistics as a colored person or person of color. 

§ 2177(14). Unlawful for whites to marry other 
than white; penalty. — It shall be unlawful for a 

white person to marry any save a white person. 
Any person, white or otherwise, who shall 
marry or go through a marriage ceremony in 
violation of this provision shall be guilty of a 
felony, and shall be punished by imprisonment 
in the penitentiary for not less than one nor 
more than two years, and such marriage shall 
be utterly void. 

§ 2177(15). False statement in application; pen- 
alty. — Any person who shall make or cause to be 
made a false statement as to race or color of him- 
self or parents, in any application for marriage li- 
cense, shall be guilty of a felony, and shall be pun- 
ished by imprisonment in the penitentiary for not 
less than two nor more than five years. 

§ 2177(16). Ordinary's noncompliance with law — 



Ga— 3 



[65] 



§ 2177(17) 



POWERS AND LIABILITIES OF CORPORATIONS 



§ 2226 



Any ordinary who shall issue a marriage license 
without complying with each and every provision 
of this Act shall be guilty of and punished as for 
a misdemeanor. 

§ 2177(17. Performing marriage ceremony in vi- 
olation of law. — If any civil officer, minister, or of- 
ficial of any church, sect, or religion, authorized to 
perform a marriage ceremony, shall wilfully or 
knowingly perform any marriage ceremony in 
violation of the terms of this Act, he shall be 
guilty of and punished as for a misdemeanor. 

§ 2177(18). Report of violation of law. — If any 
case of a marriage in violation of the provisions 
of this Act is reported to the State Registrar of 
Vital Statistics, he shall investigate such report, 
and shall turn over to the Attorney-General of the 
State the information obtained through such in- 
vestigation. 

§ 2177(19). Birth of legitimate child of v/hite 
parent, and colored parent, report of, and prosecu- 
tion. — When any birth certificate is forwarded to 
the Bureau of Vital Statistics, showing the birth 
of a legitimate child to parents one of whom is 
white and one of whom is colored, it shall be the 
duty of the State Registrar of Vital Statistics to 
report the same to the Attorney-General of the 
State, with full information concerning the same. 
Thereupon it shall be the duty of the Attorney- 
General to institute criminal proceedings against 
the parents of such child, for any violation of the 
provisions of this Act which may have been com- 
mitted. 

§ 2177(20). Duty of Attorney- General and solic- 
itor-General as to prosecution. — It shall be the 
duty of the Attorney-General of the State, as 
well as the duty of the Solicitor-General of the 
Superior Court where such violation occurs, to 
prosecute each violation of any of the provisions 
of this Act, when the same is reported to him by 
the State Registrar of Vital Statistics. If the At- 
torney-General fails or refuses to prosecute any 
such violation so reported to him by the State 
Registrar of Vital Statistics, the same shall be 
grounds for impeachment of the Attorney-Gen- 
eral, and it shall be the duty of the State Regis- 
trar of Vital Statistics to institute impeachment 
proceedings against the Attorney-General in such 
case. 



CHAPTER 2 
Of Domicile, and Manner of Changing the Same 
§ 2181. (§ 1824.) Domicile. 

Meaning of "Permanently" as Used in Section. — The word 
"permanently" is used in this section in contradistinction 
from the word "temporarily." Alvaton Mercantile Co. v. 
Caldwell, 34 Ga. App. 151, 128 S. E- 781. 

Residence and Domicile Distinguished. — The removal to an- 
other county and there renting a house, did not constitute a 
change of domicile, where the removal was for the purpose 
of educating children, the former home was maintained, 
the incidents of citizenship there discharged, and there was 
at no time an intention to provide a fixed place of abode in 
the place of removal, or to there establish permanent resi- 
dence. Alvaton Mercantile Co. v. Caldwell, 34 Ga. App. 
151, 128 S. E- 781. See § 2186 and notes thereto. 

§ 2186. (§ 1829.) Change of domicile. 

Involves Exercise of Volition and Choice. — As to a per- 
son sui juris, the matter of making a change in domicile is 
one involving the exercise of volition and choice. Stanfield 
v. Hursey, 36 Ga. App. 394, 136 S. E. 826. See notes to § 
2181. 



§ 2187. (§ 1830.) Of persons not sui juris. 

Presumption and Proof of Change. — Where a resident of 
this state was adjudged insane by the courts of this state in 
1910, he was at least prima facie incapable thereafter of 
making a change of his domicile. Proof that, after such ad- 
judication, he "went over to stay with his people in North 
Carolina," and was placed in a public institution of that 
state for insane persons, is insufficient to show that such 
person ceased to be a resident of the state of Georgia, or 
that his removal from this state was such as to suspend 
the operation of the statute of limitations as to a debt 
against him. Stanfield v. Hursey, 36 Ga. App. 394. Compare 
Jackson v. Southern Flour, etc., Co., 146 Ga. 453, 91 S. E. 
481. 

Cannot Change of Own Volition. — A person who has 
been adjudged insane can not, by his own act or volition, ef- 
fect a change in his domicile. Stanfield v. Hursey, 36 Ga. 
App. 394, 395, 136 S. E. 826. 



SECOND TITLE 
Corporations. 



CHAPTER 3 

Corporations, Their Creators, Powers, and Lia- 
bilities 



ARTICLE 4 
Corporation Commissioner 

§ 2209. Returns of corporations. 

Editor's Note. — The section does not in any manner pur- 
port by its terms to prohibit a corporation from doing busi- 
ness in this State until it shall have filed the report. Ac- 
cordingly, a corporation doing business in this State prior to 
making the report does not thereby violate the terms of 
the section, the terms of the statute which in such a case it 
does violate being merely the requirement to file the 
report, and pay the fee provided for in section 2210, which 
breach renders the corporation subject, within the discretion 
of the secretary of state, to the penalty imposed thereby. 
See Alston v. New York Contract Purchase Corp., 36 Ga 
App. 777, 138 S. E. 270. 

§ 2210. Fees. 

See Editor's Note under section 2209. 

§ 2211. Penalty for non-compliance. 

Effect of Non- Conformance upon Contracts. — The penalty 
prescribed being all inclusive, and the corporation not being 
prohibited by such breach of duty from doing business within 
the State, its contracts are not rendered void by a failure to 
comply with the requirements mentioned. Alston v. New 
York Contract Purchase Corp., 36 Ga. App. 777, 138 S. E. 
270. See Editor's Note under section 2209. 



ARTICLE 5 
Powers and Liabilities of Corporations 

§ 2226. (§ 1862.) No collateral attack as to cor- 
porate existence. 

Editor's Note. — This section is merely a codification of the 
universally accepted doctrine. Since the Dartmouth College 
Case the principle then announced that a charter to a pri- 
vate corporation constitutes a contract between the / State 
and the incorporators have been controlling, and this alone 
is sufficient reason why persons not parties to the contract 
should not be allowed to attack its validity. That right be- 
longs to the State. The State having bestowed life upon the 
corporation and dictated what it can and can not do, also 
has the right to waive violations of the contract on the part 
of the incorporators. However, this doctrine should never 
be applied in favor of the said incorporators themselves, to 
the prejudice of a person who has not dealt with them as a 
corporation. Hence, any person whose property is sought to 
be taken under the right of eminent domain may challenge 
the legality of the corporation's charter, such person not 
having recognized or dealt with the corporation as such. 
Rogers v. Taccoa Power Co., 161 Ga. 524, 131 S. E- 517. See 
also Academy of Music v. Flanders Bros., 75 Ga. 14; 20 
Harvard I,aw Review 472. 



[66] 



§ 2258 



PRIVATE CORPORATIONS 



§ 2366(3) 



ARTICLE 9 

Corporations, How Served 

§ 2258. (§ 1899.) Service of process, how per- 
fected. 

II. SERVICE UPON AGENT. 
What Constitutes an Agent within Meaning of Section. — 

Where the person upon whom a rule nisi was served exer- 
cised large discretionary and supervisory powers he was held 
to be an agent of the defendant company, within the mean- 
ing of the section. Georgia Creosoting Co. v. Fowler, 35 Ga. 
App. 372, 133 S. E. 479. 

Same — Ticket Agent of Railroad Selling for Pullman Com- 
pany. — Where the ticket agents of a railroad company sold 
tickets furnished to them by the Pullman Company and ac- 
counted therefor directly to that company from which they 
received instructions under an agreement without compen- 
sation, they were agents of the Pullman Company who rep- 
resented it in its business and on whom service of process 
might legally be made in a suit against it, under this sec- 
tion. Huckabee v. Pullman Co., 8 Fed. (2d), 43. 

Same — Agents Other Than One Designated for Service. — 
That a foreign corporation has designated certain persons 
as its agents for service in the state does not render invalid 
service of process against it on others, who are in fact its 
agents for that purpose under the provisions of the state 
statute. Huckabee v. Pullman Co., 8 Fed. (2d), 43. 

III. LEAVING COPY AT PLACE OF BUSINESS. 

The essentials for a suit against a foreign corporation are 

that it shall be engaged in business in the state, and under 
this section, that service be made upon an agent who rep- 
resents the corporation in its business or by leaving the 
process at the place of transacting the usual and ordinary 
public business of such corporation. Huckabee v. Pullman 
Co., 8 Fed. (2d), 43. 

IV. APPLIED TO FOREIGN CORPORATIONS. 

As to who is agent, see II. Service upon Agent; as to place 
of service, see III. Leaving Copy at Place of Business; as 
to sufficiency of return, see V. The Return. 

V. THE RETURN. 

What Return Should Show. — A return of service of proc- 
ess on a foreign corporation, by leaving a copy of the writ 
"at the office and place of doing business of said corpora- 
tion," but which failed to state that it was "the place of 
transacting the usual and ordinary public business of such 
corporation," is insufficient under this section. Huckabee 
v. Pullman Co., 8 Fed. (2d), 43. 



CHAPTER ? 
Private Corporations 



ARTICLE l 
Banks 



SECTION ] 
Preliminary Provisions 
§ 23616(1). Bank, definition of. 

Constitutionality. — The banking act is not unconstitutional 
because in conflict with the constitution, section 6437, which 
provides that "No law or ordinance shall pass which refers 
to more than one subject-matter." Felton v. Bennett, 163 
Ga. 849, 137 S. "E. 264. 

Nor is the act violative of the foregoing constitutional pro- 
visions for the reason that there is contained in the body of 
the act "matter different from what is expressed in the title 
thereof." Felton v. Bennett, 163 Ga. 849, 137 S. F. 264. 

Nor does it violate the constitution, section 6379. It is 
within the power of the General Assembly, without violating 
the constitution to impose upon a designated official the 
exercise of duties essentially ministerial, though quasi-ju- 
dicial, by the creation of administrative departments sub- 
ject to the Governor as the head of the executive depart- 
ment, and thus to create new departments which in no wise 
affect the distinctness and independence of either the legis- 
lative, judicial, or executive departments provided for by the 
constitution. Felton v. Bennett, 163 Ga. 849, 137 S. E. 264. 

§ 2366(3) Branch banks.— Branch banks, al- 

[6 



ready established under the law of this State, shall 
be operated as branches, and under the name of 
the parent bank, and under the control and di- 
rection of the board of directors and executive 
officers of said parent bank. The board of di- 
rectors of the parent bank shall elect a cashier, 
and such other officers that may be required to 
properly conduct the business of said branch; and 
a board of directors, or loan committee, shall be 
responsible for the conduct and management of 
said branch, but not of the parent bank or of any 
other branch save that of which they are officers, 
directors, or committee. By January tenth of 
each tax year the board of directors of the par- 
ent shall set aside for the exclusive use of said 
branch such proportion of its entire capital that 
the total deposits of such branch bank on January 
first of each tax year bears to the grand total of 
all the deposits on January first of each tax year 
in all branches of such bank, or banking associa- 
tion, including the parent bank, in this State. 
Branch banks shall be taxed on the capital set 
aside, as herein provided, to their exclusive use 
in the counties, municipalities, and districts in 
which they are located, and the parent banks shall 
be relieved of taxation to the extent of capital so 
set aside for the exclusive use of such branch; 
provided, that the real estate owned or held by 
branch banks shall be taxed in the county, munici- 
pality, and district where located, as other real 
estate situated in such county, municipality, and 
district, the same to be deducted from either the 
value of the capital of the parent bank or the 
respective branch bank. It shall be the duty of 
the board of directors of the parent bank to fur- 
nish a sworn statement to the taxing authorities 
of the county, municipality, and district in which 
the branch bank is located, of the total amount 
of deposits on January first of each tax year in 
each of the branch banks, including the parent 
bank, and such sworn statement shall be filed 
with such taxing authorities not later than March 
first of each tax year, and shall, at the same time, 
furnish to such taxing authorities a sworn state- 
ment of the proportionate part of the capital of 
such bank, or banking association, so set aside, as 
herein provided, for such county municipality, and 
district for taxing purposes for that year. If the 
taxing authorities in any county, municipality, 
and district are not satisfied with the amount of 
capital set aside for such county, municipality, 
and district for taxation, such taxing authorities 
shall have the right to file with the Superintendent 
of Banks of this State objections to the amount 
of capital so set aside, and, upon ten days written 
notice to the directors of the parent bank and to 
such authorities, such superintendent shall hear 
evidence, at a time and place to be fixed by him 
in such notice, and determine, what amount should 
have been set aside to such branch bank for taxa- 
tion in the county, municipality, and district in 
which it is situated, as herein provided, and his de- 
cision on the question shall be final, and the amount 
of capital so set apart by him shall be subject to 
taxation in such county, municipality, and dis- 
trict in which such branch bank is situated. Cap- 
ital, as used in this section, shall include surplus and 
undivided profits, except real estate owned or held 
by the bank. After this section takes effect, no 
new or additional branch banks shall be estab- 

7] 



§ 2366(56) 



TAKING POSSESSION OF BANK BY SUPERINTENDENT 



§ 2360(71) 



lished. Acts 1919, pp. 135, 136; 1920, pp. 102, 108; 

1927, p. 195. 

Editor's Note. — This section was so enlarged by tne 
amendment of 1927 that few of its provisions were found in 
the original section, while other provisions were left out 
from its scope. The changes effected are too multifarious 
for specific description, and may only be determined by close 
comparison of the old and the new section. 



SECTION 7 
Taking Possession of Bank by Superintendent 

§ 2366(56). Notice of taking possession. — On 

taking possession of the assets and business of 
any bank, as in this Act authorized, the Superin- 
tendent of Banks shall forthwith give notice of 
such action to all banks and other persons or cor- 
porations holding or in possession of any assets 
of such bank. No bank or other person or cor- 
poration shall have a lien or charge for any pay- 
ment, advance, or clearance thereafter made, or 
liability thereafter incurred, against any of the 
assets of the bank, of whose assets and business 
the Superintendent shall have taken possession as 
aforesaid. 

The superintendent shall also file and have 
recorded in the office of the clerk of the Superior 
•court of the county in which the bank is located, 
and if the bank has a branch or branches in an- 
other or other counties, in such county or coun- 
ties also, a certificate under his hand and the seal 
of the Department of Banking, wherein he shall 
set forth that the assets and business of the bank 
have been taken charge of by him for the purpose 
of liquidation, giving the date on which he took 
charge. A certified cop}* of said certificate shall 
be admissible in evidence without proof, as a 
duly recorded deed is admitted. Acts 1919, pp. 
135, 155; 1927 pp. 195, 197. 

Editor's Note. — The last paragraph of this section was 
added by the amendment of 1927 

§ 2366(57) Business resumed, how. — After the 
Superintendent of Banks has so taken possession 
of any bank, the Superintendent may permit such 
bank to resume business upon such conditions as 
may be approved by him. When necessary, in 
order to make good an impairment of capital, the 
stockholders, with the approval of the superin- 
tendent, may levy a voluntary assessment on the 
stockholders as provided in section 7 of this 
article, the amount of the assessments be fixed by 
the superintendent. Acts 1919, pp. 135, 156; 1927, 
pp. 195, 198. 

Editor's Note. — The last sentence of this section is new 
with the amendment of 1927. 

§ 2366(58). Collections and sales, how made. 

Confirmation of Sales. — Whether sales made under an or- 
der of the superior court at the instance of the superin- 
tendent of banks under this section should be confirmed is a 
matter within the sound legal discretion of the court. Such 
sales are never consummated until confirmed. Wingfield v. 
Bennett, 36 Ga. App. 27, 134 S. E- 840. 

§ 2366(66). Superintendent may reject claims 
or change rank. — If the Superintendent doubts 
the justice and validity of any claim or deposit or 
the priority therefor as claimed in the proof filed, 
he may either reject the same or change the rank 
or order of paying the same and serve notice of 
such rejection or change upon the claimant or 
depositor, either personally or by registered mail, 
and an affidavit of the service of such notice, 



which shall be prima facie evidence thereof, shall 
be filed in the office of the Superintendent. Any 
action or suit upon such claim so rejected or 
changed as to rank, whether for the purpose of 
having said claim allowed or of establishing the 
rank or order of payment thereof must be brought 
by the claimant against the bank in the proper 
court of the county in which the bank is located, 
within ninety (90) days after such service, or the 
same shall be barred. Notice of the filing of such 
suit with a copy of the petition shall be given by 
the claimant to the Superintendent of Banks by 
registered mail at least ten days (10) before the 
suit shall be in order for trial. The Superintend- 
ent, if he so desires, may defend the suit in the 
names of the bank. Suits brought under this sec- 
tion shall be tried at the first term of the court. 
Acts 1919, pp. 135, 158; 1927, pp. 196, 198. 

Editor's Note. — The provision in case the superintendent 
doubts the priority of the claim is new with 1927 amend- 
ment. By the amendment the superintendent may change 
the rank or order of paying the claim, and the rest of the 
section is so amended as to conform it to the last referred 
change. The last three sentences are also new with the 
amendment. 

§ 2366(67) Objections to claims. — Objections 
to any claim or deposit not rejected or chanered 
as to rank or order of payment by the Superin- 
tendent may be made by the party interested, by 
filing a copy of such objections with the Super- 
intendent; and the Superintendent, after investi- 
gation, shall either allow such objections and re- 
ject the claims or deposit, or change the rank or 
order of payment thereof, and present such ob- 
jections to the Superior Court of the county in 
which the bank is located, which court shall cause 
an issue to be made up and tried at the first term 
thereafter, as to whether or not such claim or 
deposit should be allowed and as to the proper 
rank or order of payment thereof. Acts 1919, pp. 
135, 159; 1927, pp. 195, 199. 

Editor's Note. — The reference to the charge of the ranK 
or order of claims throughout this section is new with ths 
amendment of 1927. 

§ 2366(70). Order of paying debts. — After the 
payment of the expenses of liquidation, including 
compensation of agents and attorneys, and after 
the payment of unremitted collections, the order 
of paying off debts due by insolvent banks shall 
be as follows: 

(1) Debts due depositors. 

(2) Debts due for taxes, State and Federal. 

(3) Judgments. 

(4) Contractual obligations. 

(5) Unliquidated claims for damages and the 
like. 

Provided, that nothing herein contained shall 
affect the validity of any security or lien held by 
any person or corporation. Acts 1919, pp. 134, 
159; 1925, pp. 119, 129; 1927, pp. 195, 199. 

Editor's Note. — By the amendment of 1927 the payment of 
unremitted collections are also made prior to the payment 
of other classes of claims enumerated. The amendment also 
changed the order of payment, and the number of the 
classes of claims enumerated. The proviso is new with the 
amendment. 

Loan to Cashier. — The money loaned to the cashier is 
not a debt entitled to priority under class 5 [now 1] of th;s 
section, as a debt due by the bank as trustee or other fidu- 
ciary, or as a claim of like character. Campbell v. Morgan 
County Bank, 35 Ga. App. 222, 132 S. E- 648. 

§ 2366(71) Assessment of stockholders. 

Constitutionality. — A consideration and determination of 



[68] 



§ 2366(75) 



REGULATION OF THE BUSINESS OF BANKING 



§ 2366(148) 



the question whether the provision of this section is viola- 
tive of the due-process clause of the fourteenth amendment 
of the Constitution of the United States being for decision by 
a full bench of six Justices, who are equally divided in opin- 
ion, the judgment of the lower court upon this point is af- 
firmed by operation of law. Felton v. Bennett, 163 Ga. 849, 
137 S. E. 264. 

Delegation of Authority. — Authority of the superintendent 
of banks to determine the stockholder's liability to deposit- 
ors and collection thereof under this section as amended in 
1925, cannot be delegated to agent by power of attorney au- 
thorized by sections 2366(60), (61), notwithstanding section 
2366(74) and section 2366(16). In re Giles, 21 Fed. (2d), 536. 

§ 2366(75). Unclaimed deposits and dividends. 

— Where deposits or other claims against the 
bank are not filed within twelve months after the 
expiration of the date fixed by the superintendent 
for the presentation of claims against the bank, 
no dividend shall be paid thereon but dividends 
accruing on said claims shall be distributed as other 
assets of the bank, and where dividends are not 
accepted and collected within six months after 
they are declared, they shall become a part of 
the general fund of the bank and be distributed 
as other assets. In case of banks that were 
closed and being liquidated by the Superinten- 
dent before August 25, 1925, claims which were 
not filed within sixty days from the date of the 
approval of this act shall be forever barred, and 
all funds deposited or held to meet such claims, 
and any dividends which may have been de- 
clared but are not collected within such period 
of sixty days, shall become part of the general 
funds of the bank, and shall be distributed as 
other assets. Acts 1925, pp. 119, 132; 1927, 195, 
200. 

Editor's Note. — The provision as to the bar of claims not 
presented in time in case of banks closed and in liquidation 
before August 25, 1925, is new with the amendment of 1927. 



SECTION 8 
Incorporation of Banks 

§ 2366(80). Application for charter. — Any 

number of persons not less than five (5) may 
form a corporation for the purpose of carrying 
on the business of banking, by filing in the office 
of the Secretary of State an application in writ- 
ing signed by each of them, in which they shall 
state. 

(3) The amount of its capital stock which 
shall not be less than twenty-five thousand 
($25,000) dollars where located in a town or city 
whose population does not exceed three thou- 
sand according to the last preceding census of 
the United States, and not less than fifty thou- 
sand ($50,000) dollars where located in a city or 
town whose population exceeds three thousand 
according to said census. Provided, however, 
this section shall not apply to banks whose 
capital stock is now fixed, so they shall not be 
required to increase the same. Acts 1927, 195, 
200. 

Editor's Note.— The amendment of 1927 changed the re- 
quirement as to the minimum amounts of the capital stock, 
and the population of places of establishment, which appear 
in the third clause of this section. 

§ 2366(86). Payment of capital. 

Prior Law Construed.— In Pearce v. Bennett, 35 Ga. App. 
415, 133 S. E- 278, construing Civil Code of 1910, section 
2268, which permitted the board of directors to prescribe how 
any unpaid part of the capital stock should be paid in, it 
was held that where a subscriber for stock in such a bank 
had paid his pro rata of the minimum amount required to 



be paid in before the filing of the application for charter 
and the subscription contract did not provide otherwise, the 
remainder of his subscription was not due until the direc- 
tors called for its payment, and the statute of limitations 
did not begin to run in his favor as to the unpaid install- 
ment until such condition was complied with. It will be 
noted that section 2268 of the Civil Code of 1910, which Bell, 
J., referred to in this case was repealed by Acts 1919, p. 
135. See Editor's Note under section 2366(1) of the Code- 
of 1926. Of course banks incorporated under the said sec- 
tion are still governed by that law instead of sections 
2366(1) -(196) unless the right to change was reserved to 
the State in the charters of the individual Banks. Dart- 
mouth College case. To ascertain whether such reservation 
was made in a given case recourse to the charter of the 
given bank must be had. Ed. Note. 



SECTION 18 

Liability of Stockholders 

§ 2366(140). Exception for trustees and other 
fiduciaries. 

Applicability to Parent of Minor. — One who buys stock in 
a bank, and has it entered on the books of the bank in his 
own name as guardian for his minor child, is himself, as 
between him and the bank, the owner of the stock, and the 
provisions of this section are not applicable. Where the 
bank has been taken over by the superintendent of banks 
under the authority of the banking laws, such person is in- 
dividually liable for an assessment made against him a? 
stockholder by the superintendent of banks. Rosenberg v 
Bennett, 35 Ga. App. 86, 132 S. E. 119. 

§ 2366(141). Liability of stockholder after trans- 
fer of stock. 

See note to § 2366(142). 

§ 2366(142). Liability when bank fails. 

Effect of Liability of Former Stockholder. — The present 
owner of stock, against whom such an assessment is made, 
can not defeat liability therefor upon the ground that under 
the provisions of this and section 2366(141), a former stock- 
holder from whom he purchased the stock within six months 
prior to the date of the failure of the bank may be liable 
for an assessment thereon. The right to enforce the assess- 
ment against the former stockholder is in the superintendent 
of banks, and not in the present stockholder. Rosenberg 
v. Bennett, 35 Ga. App. 86, 132 S. E. 119. 

Effect of Defective Title of Former Stockholder. — A 
present stockholder against whom an assessment has been 
made under the authority of this law, can not defend against 
such assessment upon the ground that the former stock- 
holder from whom he purchased the stock had no title. 
Rosenberg v. Bennett, 35 Ga. App. 86, 132 S. E. 119. 



SECTION 19 

Regulation of the Business of Banking 

§ 2366(148). Qualification of directors. — Every 
director must, during his whole term of service, be 
a citizen of his [this] State or reside within 25 
miles of the city or town in which the bank is lo- 
cated, and at least three fourths of the directors 
must be residents of the city or town in which the 
bank is located or within twenty-five miles there- 
of, and must continue so to reside during their 
continuance in office. Every director must own in 
his own right and unpledged at least ten shares of 
the capital stock of the bank of which he is a di- 
rector, upon which all installments which are due 
shall have been paid in full, unless the capital of 
the bank shall not exceed twent3^-five thousand 
dollars, in which case he must own at least five 
shares of such stock. Any director who ceases to 
be the owner of the number of shares herein re- 
quired, or who pledges the same, or fails to pay 
any installment thereon when the same becomes 
due or who becomes in any other manner dis- 



[69] 



§ 2366(151) 



REGULATION OF THE BUSINESS OF BANKING 



§ 2366(169) 



qualified, shall vacate his place as a memiber of 
the board. Provided, that this section shall not 
apply to directors in office at the date this act 
takes effect, and said directors shall be qualified 
to succeed themselves as often as the}- may be re- 
elected without reference to the provisions of this 
section. Acts 1919. pp. 135, 197; 1927, pp. 195, 201. 

Editor's Note. — Prior to the amendment of 1927 directors 
of banks with a capital stock of between $15,000 and $50,000 
and directors of banks with a capital stock of over $50,000 
were required to own two and five shares of the capital 
stock, respectively. All the other provisions of the section, 
except the provision as to vacating the office of directors 
which remains the same, are new with the amendment. 

§ 2366(151). Semi-annual examinations by di- 
rectors. — It shall be the duty of the board of 
directors of every bank, at least once in each 
six (6) months, to count the cash and examine 
fully into the books, papers, and affairs of the 
bank of which they are directors, and- partic- 
ularly into the loans and discounts thereof, 
with the special view of ascertaining the value 
and security thereof, and the collateral security, 
if any, given in connection therewith, and into 
such other matters as the Superintendent of 
Banks may require. Such directors shall con- 
duct such count and examination by a com- 
mittee of at least three (3) of its members; 
and shall have the power to employ certified 
public accountants, or other expert assistance in 
making such examinations, if they deem the 
same necessary. Within ten (10) days after 
the completion of each of such examinations, 
a report in writing thereof, sworn to by the di- 
rectors making the same, shall be made to the 
board of directors, which report shall be spread 
upon the minutes of said board; and the orig- 
inal thereof shall be placed on file in said bank, 
and a duplicate thereof filed with the Superin- 
tendent of Banks. Provided, however, that in 
lieu of the semi-annual examination of the di- 
rectors, such semi-annual examination may be 
made by accountants, approved by the Super- 
intendent of Banks; and provided, that any 
bank which fails to transmit to the Superin- 
tendent of Banks, within ten (10) days after the 
completion of the same, a copy of the report 
made by such board of directors or such ac- 
countants shall be subject to the same penalty 
as is provided by § 2366(44) for failure to make 
and transmit its report in response to call of 
the Superintendent of Banks. Acts 1919, pp. 
135, 193; 1922, p. 67; 1927, pp. 195, 198. 

Editor's Note. — The provision at the beginning of the sec- 
ond sentence as to condicting the counts by a committee, 
which formerly was merely permissive, was made manda- 
tory by the use of word "shall'' in place of ''may," by the 
Act of 1927. 

§ 2366(159). Loans by bank, limit of. — No 

bank shall be allowed to lend to any one per- 
son, firm, or corporation more than twenty (20) 
per cent of its capital, and unimpaired surplus. 
And no loan shall be made in excess of ten (10) 
per cent of the capital and surplus, except upon 
good collateral or other ample security and 
with the approval of a majority of the directors, 
or of a committee of the board of directors, au- 
thorized to act, which approval shall be evi- 
denced by the written signature of said direc- 
tors or the members of said committee. In 
estimating loans to any person, all amounts 

[7 



loaned to firms and partnerships of which he 
is a member shall be included: Provided, how- 
ever, that a bank may buy from or discount 
for any person, firm, or corporation, bills of 
exchange drawn in good faith against actually 
existing values, or commercial or business pa- 
per actually owned by the person negotiating 
the same, in addition to loans directly made to 
the person, firm, or corporation selling the 
same, such purchase or discount not to ex- 
ceed (20) per cent of the capital and surplus, 
to be approved in writing by a majority of the 
directors, or by a committee of such board au- 
thorized to act; and provided, that the limit 
of loans herein fixed shall not apply to bona 
fide loans made upon the security of agricul- 
tural, manufactured, industrial products or live 
stock having a market value and for which 
there is ready sale in the open market, title to 
which by appropriate transfer shall be taken in 
the name of the bank, and which shall be se- 
cured by insurance against loss by fire, with 
policies made payable to the bank, where no 
more than eighty (80) per cent of the market 
value of such products shall be loaned or ad- 
vanced thereon. In all such cases a margin of 
twenty (20) per cent between the amount of 
the loan and the market value of the products 
shall at all times be maintained (except where 
products are intended for immediate ship- 
ment) ; and the bank shall have the right to 
call for additional collateral when the differ- 
ence between the market value and the amount 
loaned shall be less than twenty (20) per cent, 
and in the event of the failure to comply with 
such demand, to immediately sell all or any 
part of such products in the open market and 
pay the amount of the loan and the expenses 
of sale, and the balance to the borrower; and 
provided, that the limit herein fixed shall not 
apply to loans fully secured by bonds or cer- 
tificates of indebtedness of the United States or 
of this State, or of the several counties, dis- 
tricts, or municipalities thereof which have been 
duly and regularly validated as provided by 
law r . Liabilities arising to the makers and in- 
dorsers of checks, drafts, bill of exchange, re- 
ceived by the bank on deposit, cashed, or pur- 
chased by it, shall not in any way be considered 
as borrowed money or loans. It shall be the 
duty of the Superintendent of Banks to order 
any loans in excess charged to profit and loss, 
provided in his opinion such excess is not well 
secured; and if such reduction shall not be 
made within thirty (30) days after such notifi- 
cation, to proceed as in other cases provided 
for violation of the orders of the Superintend- 
ent. Acts 1919, pp. 105, 197; 1922, pp. 88, 70; 
1927, p. 201. 

Editor's Note. — By the amendment of 1927 the phrase "not 
to exceed twenty (20) per cent of the capital and surplus" 
with regard to purchases referred to in the first part of the 
proviso, was substituted for the phrase "if in excess of ten 
(10) per cent of the capital and surplus." 

§ 2366(169). Purchase of stocks and invest- 
ment securities. — No bank shall subscribe for, 
purchase, or hold stock in any other bank, ex- 
cept stocks in the Federal Reserve Bank of 
Atlanta, necessary to qualify for membership 
therein, nor in any other corporation unless 

0] 



§ 2366(185) 



REGULATION OF THE BUSINESS OF BANKING 



§ 2366 (195B) 



the same shall have been transferred to it in 
satisfaction of a debt previously contracted, or 
shall have been purchased at a sale under a 
power contained in a note or other instrument 
by which it was pledged to the bank or under 
a judgment or degree in its favor, and all such 
stock shall be disposed of by the bank within 
six months, unless the Superintendent of Banks 
shall extend the time for good cause shown. 
Nor shall a bank purchase or hold any bonds 
or debentures except such as are classed as in- 
vestment securities, and the buying and selling 
of such securities shall be limited to buying 
and selling without recourse marketable obli- 
gations upon which there has never been a de- 
fault, evidencing indebtedness of any person, 
copartnership, association, or corporation in the 
form of bonds, notes and/or debentures, com- 
monly known as investment securities, under 
such regulations as may be prescribed by the 
Superintendent of Banks. The total amount 
of such investment securities shall at no time 
exceed 25 per cent, of the capital and unim- 
paired surplus of such bank; but this limitation 
as to the amount shall not apply to obligations 
of the United States, of this State, or of the 
several counties, districts, or municipalities 
thereof which have been validated as provided 
by law. Nothing in this section is to be con- 
strued as, applying to savings banks doing a 
savings business only. Provided that this section 
shall not apply to securities actually owned at 
the date Act of 1919 became effective. Pro- 
vided, further, that any bank may subscribe 
for, or purchase, stock in an agricultural credit 
corporation duly organized under the laws of 
this State having authority to make loans to 
the farmers of this State for agricultural pur- 
poses and to re-discount the same with the In- 
termediate Credit Bank of Columbia, but no 
bank shall subscribe for or purchase stock in 
more than one such corporation, nor invest 
therein more than ten per centum of its cap- 
ital, and no such subscription or purchase shall 
be made until first approved by the Superin- 
tendent of Banks. Acts 1924, p. 76; 1919, pp. 
135, 201; 1927, pp. 195, 203. 

Editor's Note. — Save the last proviso, all of the provisions 
of the section were changed by the amendment of 1927. The 
changes effected are so versatile as to render it impossible 
to point them out by specific description, and calls for a 
comparison of the two sections. 



Payment of deposit in two 



§ 2366 (185). 
names. 

Effect upon Title to Deposit. — This section has reference 
to the liability of the bank as to a joint deposit, making it 
lawful for the bank to pay either party under such cir- 
cumstances. It does not affect the right of the property 
as between the parties; that is, between the depositor and 
the third person claiming the deposit. It has no applicability 
to the title to the money as between the depositor and the 
third party. Clark v. Bridges, 163 Ga. 542, 546, 136 S. E. 444. 

§ 2366(190). Forged or raised checks. 

Applicability to Signing' by Unauthorized Agent. — The ex- 
pression "forged check," as used in this section applies 
only to a check created as a result of a criminal act of for- 
gery, and does not apply to a check to which one's name as 
maker or drawer is signed by another, who purports to act 
as the agent for the maker or drawer, although no such 
authority exists. Samples v. Milton County Bank, 34 Ga. 
App. 248, 129 S. E- 170. 

Under the undisputed facts the plaintiff is not, as a mat- 
ter of law, estopped, irrespective of the provisions of this 

[7 



section, from repudiating the act of the alleged agent in 
signing the plaintiff's name to the checks without authority. 
Samples v. Milton Countv Bank, 34 Ga. App. 248, 129 S. E. 
170. 

Excuse for Failure to Give Notice. — The effect of the rul- 
ing in Citizens, etc., Bank v. Ponsell, 33 Ga. App. 193, 125 
S. E. 775, was that the trial court would not have been au- 
thorized to hold the reasons assigned by the plaintiff in 
exculpation of her failure to notify the defendant bank of 
the forgeries, within 60 days, as required by this section 
were not inadequate as a matter of law. That ruling did 
not go to the extent of holding that the circumstances 
pleaded in extenuation of such failure on the part of the 
plaintiff were necessarily such as would relieve her from 
the penalty prescribed. While it is true that the statute 
charges the depositor with a duty of notifying, it does not 
undertake to say what facts or circumstances, if any, would 
be sufficient to obviate the penalty of such dereliction. S. 
C, 35 Ga. App. 460, 133 S. E. 351. 

It is for the jury to say whether the facts pleaded and 
proved by the plaintiff, in exculpation of her dereliction, 
were such as would absolve her from the penalty prescribed. 
Consequently, the overruling of the demurrer to the peti- 
tion does not mean that the plaintiff is absolutely entitled 
to recover if she proves her case as laid; for a general de- 
murrer should be overruled in an action based on facts and 
circumstances justifying the plaintiff's admitted negligence 
when the jury, from the facts alleged, would be authorized 
to infer a justification for negligence, though they would not 
be bound to do* so. See McDuffie v. Ocean Steamship Co., 
5 Ga. App. 125, 129, 62 S. E. 1008. Ponsell v. Citizens, etc., 
Bank, 35 Ga. App. 460, 133 S. E. 351. 

§ 2366(194). Payment of deposit of deceased 
depositor. — Upon the death of any person in- 
testate, having a deposit in a bank of not more 
than three hundred no/100 ($300.00) dollars, 
such bank shall be authorized to pay over such 
deposit: (a) to the husband or wife of the de- 
positor; (b) if no husband or wife, to the chil- 
dren; (c) if no children, to the father if living; 
if not, to the mother of the depositor; (d) if 
no children or parent, then to the brothers and 
sisters of the depositor. The receipt of such 
person or persons shall be a full and final ac- 
quittance to the bank and relieve it of all lia- 
bility to the estate of said deceased depositor or 
the representative thereof should one be ap- 
pointed. Such deposit shall be exempt from 
the process of garnishment. Acts 1919, pp. 
135, 210; 1927, pp. 195, 204. 

Editor's Note. — Prior to its amendment in 1927, this sec- 
tion applied to deposits not exceeding one hundred dollars. 
The amendment extended its application to deposits of three 
hundred dollars and less. The provision as to the exemp- 
tion of the deposit from process of garnishment is new with 
-the amendment. 

§ 2366 (195 A). Stale checks.— Where a check 
or other instrument payable on demand at any 
bank or trust company doing business in this 
State is not presented for payment within six 
months from the date thereof, the same shall be 
regarded as a stale check, and the bank or trust 
company upon which the same is drawn may re- 
fuse payment thereof unless expressly instructed 
by the drawer or maker to pay the same, and no 
liability shall be incurred to the drawer or maker 
for dishonoring the check or other instrument 
by such non-payment. Acts 1927, pp. 195, 204. 

§ 2366(195B). Stop-payment orders to be re- 
newed. — No revocation, countermand, or stop- 
payment order, relating to the payment of any 
check or draft against an account of a depositor 
in any bank or trust company doing business in 
this State, shall remain in effect for more than 
ninety (90) days after the service thereof on the 
bank, unless the same be renewed, which re- 
newals shall be in writing and shall be in effect 

1] 



§ 2366 (196 A) 



LIFE INSURANCE 



§ 2499 



for not more than ninety (90) days from the 
date of the service thereof on the bank or trust 
company, but such renewals may be themselves 
renewed from time to time. All notices affect- 
ing checks or drafts of any bank or trust com- 
pany, upon which revocation, countermand, or 
stop-payment orders have heretofore been made, 
shall not be deemed to continue in effect for 
more than ninety (90) days from the date of the 
approval of this Act, unless renewed in writing, 
which renewal shall not continue in effect for 
more than ninety (90) days from the date of the 
service thereof on the bank or trust company. 
Acts 1927, pp. 195, 205. 



SECTION 20 

Operation and Effect of Act 

§ 2366 (196 A). Short title.— The Act approved 
August 16, 1919, entitled "An Act to regulate 
banking in the State of Georgia; to create the 
Department of Banking of the State, of Georgia, 
to provide for the incorporation of banks, and 
the amendment, renewal, and surrender of char- 
ters; to provide penalties for the violation of 
laws with reference to banking and the banking 
business; and for other purposes," and the sev- 
eral Acts amendatory thereof, shall be referred 
to collectively as "The Banking Law." Acts 
1927, pp. 195, 205. 

§ 2366(196B). Venue of suits; service. — All 

suits against the Superintendent of Banks, aris- 
ing out of the liquidation of insolvent banks, 
shall be brought in the county in which such 
bank had its principal place of business, and 
service may be had on the Superintendent by 
serving such suit and process on the liquidation 
agent in charge of the affairs of the said bank, 
or, if there be none, on any former officer of said 
bank; provided, however, that in all such suits a 
second original shall be served on the Superin- 
tendent of Banks. Acts 1927, pp. 195, 206. 



ARTICLE 4 
Insurance Companies 



SECTION 10 

Fire Insurance Contracts 

§ 2470. (§ 2089.) Contract of fire-insurance. 

Delivery. — The rule of this section is stated in Home Ins. 
Co. v. Head, 35 Ga. App. 143, 132 S. E- 238. 

Where an insurance company has accepted an application 
for insurance and has issued the policy, actual delivery is 
not essential to the consummation of a contract of insurance, 
unless expressly provided for in the application or the pol- 
icy. See New York Life Ins. Co. v. Babcock, 104 Ga. 67, 
30 S. E- 273, 42 Iv. R. A. 88, 69 Am. St. R. 134. Where both 
the application and the policy are silent as respects actual 
delivery of the policy being essential to a consummation of 
the contract, the contract becomes consummated upon the 
retention by the company of the notes and the issuance of 
the policy and mailing it to its local agent for delivery to 
the applicant. Tarver v. Swann, 36 Ga. App. 461, 137 S. E. 
126. 

Same — Parol Agreement with Agent. — Where an applica- 
tion for insurance, which, upon the consummation of the 
contract of insurance, became a part of the contract, pro- 
vided that the company should "not be bound by any act 
done or statement made by or to any agent, or other per- 
son, which is not contained in this application," an agree- 



ment not contained in the application or the policy, made 
between the applicant and the local agent, when the appli- 
cation and notes were signed, to the effect that the contract 
of insurance would not be consummated until actual delivery 
of the policy to the applicant, and that upon failure to make 
such actual delivery the applicant would not be bound upon 
the notes, did not become part of the contract. Tarver v. 
Swann, 36 Ga. App. 461, 137 S. E- 126. 

§ 2471. Policies must contain the entire con- 
tract. 

Necessity of Attaching Copy of Application. — See Couch v. 
National Life, etc., Ins. Co., 34 Ga. App. 543, 130 S. E- 596; 
Interstate Life, etc., Co. v. Bess, 35 Ga. App. 723, 134 S. E. 
804, citing and following the paragraph set out under this 
catchline in the Georgia Code of 1926. 

§ 2472. (§ 2090.) Interest of assured. 

Test of Insurable Interest. — While, under the section, an 
insurable interest is defined as "some interest in the prop- 
erty or event insured," and a "slight or contingent inter- 
est is sufficient, whether legal or equitable" such an in- 
surable interest is not to be taken as synonymous with the 
sole and unconditional ownership required by the terms of 
the policy in the instant case. Nor does the rule as to an 
insurable interest dispense with the contractual requirement 
as to liens upon the property constituting the subject matter 
of the risk. Alliance Ins. Co. v. Williamson, 36 Ga. App. 
497, 499, 137 S. E- 277. 

§ 2475. (§ 2093.) Construction. 

Usages and Customs. — See Macon County Ass'n v. Slap- 
pey, 35 Ga. App. 737, 741, 134 S. E. 834, following the para- 
graph under this catchline in the Georgia Code of 1926. 

§ 2480. (§ 2098.) Effect of misrepresentation. 

Where Capable of Two Constructions. — See Macon County 
Ass'n v. Slappey, 35 Ga. App. 737, 741, 134 S. E. 834; John- 
son v. Mutual Life Ins. Co., 154 Ga. 653, 115 S. E. 14, follow- 
ing paragraph under this catchline in Georgia Code of 1926. 

Misrepresentation in Application Not in Writing Attached 
to Policy. — In Interstate Life, etc., Co. v. Bess, 35 Ga. App. 
723, 726, 134 S. E- 804, it was said by Bell, J., "Since the 
application was not in writing and attached to the policy, 
the insurer could not defend upon the ground of material 
misrepresentations not amounting to actual fraud. The fail- 
ure to make the application a part of the contract differen- 
tiates the case from such cases as Supreme Conclave Knights 
v. Wood, 120 Ga. 328, 47 S. E- 940, where it was held that 
a material misrepresentation will avoid the policy, whether 
the statement was made in good faith or wilfully or fraud- 
ulently." 

Knowledge of Agent as Waiver. — In Interstate Life, etc., 
Co. v. Bess, 35 Ga. App. 723, 726, 134 S. E- 804, it was said 
by Bell, J., "In a case like the present, if the agent had 
actual knowledge of the facts which by a stipulation in 
the contract would render it void, the insurer could not set 
up such facts as a defense. But before the knowledge of 
the agent could work a waiver on the part of his principal, 
the knowledge must have been actual. Constructive knowl- 
edge would not be sufficient for that purpose." 

Section Given in Charge. — It would seem that it would 
not be harmful to the insurer to give in charge a part 
or all of the above Code section where the sole defense is 
actual fraud. Interstate Life, etc., Co. v. Bess, 35 Ga. 
App. 723, 134 S. E. 804. 

§ 2482. (§ 2100.) Increasing risk. 

Provisions of Section Impliedly Written into Policy. — 

It would seem that the provisions of this section should 
be considered as impliedly written into the policy, and 
that if they are violated the company will not be liable. It 
therefore becomes necessary to determine from all the sur- 
rounding facts and circumstances what character of use is 
contemplated by a policy. Macon County Ass'n v. Slappey, 
35 Ga". App. 737, 741, 134 S. E- 834. 

§ 2490 (§ 2108.) Prescribing regulations. 

Section cited in Alliance Ins. Co. v. Williamson, 36 Ga. 
App. 497, 137 S. E. 277. 



SECTION 12 
Life Insurance 
§ 2499. (§ 2117.) Law of fire-insurance appli- 
cable. 

Section cited in McGlathin v. United States Nat. Life, 
etc., Co., 36 Ga. App. 325, 136 S. E- 535. 



[72] 



§ 2501(1) 



GEORGIA PUBLIC SERVICE COMMISSION 



§ 2670(1) 



§ 2501(1). Medical examinations. — All persons 
applying for life-insurance in a life-insurance 
company writing life insurance in this State shall 
submit to such reasonable rules and regulations 
as may be prescribed by such insurance com- 
panies; and after a policy is issued on the life of 
such person, the beneficiary of such policy shall 
be entitled to collect the amount of such policy 
under the terms of the contract when it matures, 
unless the applicant or beneficiary has been 
guilty of actual fraud or has made material mis- 
representations in procuring such policy, which 
representations change the character and nature 
of the risk as contemplated in the policy so is- 
sued by the company. All statements, covenants, 
and representations contained in applications for 
insurance shall never be held or construed to be 
warranties, but shall be held to be representa- 
tions only. Acts 1912, pp. 119, 130, 1927, p. 223. 

Editor's Note. — Prior to its amendment by Acts 1927, this 
section at its beginning had contained a provision requiring 
all insurance companies, with certain exceptions, to make 
a strict medical examination of persons applying for in- 
surance. The provision and the phrase "for the purpose 
of making such examinations" which appeared after the 
phrase "such insurance companies," were stricken by the 
amendment. 

§ 2507. When laws apply. 

License Fees of Agents. — Because of this section, section 
993(69), relating to taxation of insurance agents, is not ap- 
plicable to industrial life insurance agents. Hoover v. Pate, 
162 Ga. 206, 132 S. E- 763. 



SECTION 16A 

Mutual Companies Insuring against Loss by 
Fire, etc. 

§ 2549. (§ 2140.) Insurance companies shall 
pay damages, when. 

Demand and Refusal. — See Globe, etc., Ins. Co. v. Jewell- 
Ivoudermilk Co., 36 Ga. App. 538, 137 S. E- 286, stating and 
applying the principle as set out under this catchline in the 
Georgia Code of 1926. 

In a suit upon an insurance policy, where the only alle- 
gation as to a demand upon the insurance company for 
payment of the loss was contained in the allegation as to 
the filing of the proof of loss, which was filed prior to De- 
cember 7, 1925, on which date the insurance company 
acknowledged receipt of proof of loss and denied liability 
and refused payment of loss, and where the suit was filed 
on January 12, 1926, the petition did not allege a failure of 
the insurance company to pay the loss within sixty days 
after demand. Continental Eife Ins. Co. v. Wilson, 36 Ga. 
App. 540, 137 S. E- 403. 

Same — When Insufficient to Support Verdict for Damages. 
— In the instant case such a demand as required by the sec- 
tion in order for the insured to recover damages in addi- 
tion to the loss not being shown by the evidence, the ver- 
dict for damages given by the section was unauthorized. 
The judgment overruling the defendant's motion for a new 
trial was affirmed on condition that such damages be writ- 
ten off. Alliance Ins. Co. v. Williamson, 36 Ga. App. 497, 
137 S. E- 277. 

Bad Faith.— The "bad faith" referred to in section 299 
may be of a different character from that which under cer- 
tain conditions will authorize a recovery under this section. 
Copeland v. Dunehoo, 36 Ga. App. 817, 823, 138 S. E. 267. 

An Exception to Section 4393. — In Copeland v. Dunehoo, 
36 Ga. App. 817, 821, 138 S. E- 267, Bell. J., intimates 
that this section is an exception to the provision in section 
4393, which provides that "exemplary damages can never 
be allowed in cases arising on contracts." 



SECTION 19 

Suits against Insurance Companies 

§ 2563. (§ 2145.) Suits against insurance 
companies. 

Agents in County When iPolicy Issued. — A petition 

[7 



against an insurance company, wherein it is alleged that at 
the time of the issuance of the policy sued on the defendant 
was represented by named agents in the county in which 
the suit was filed, alleges jurisdiction in that county, as 
provided in the section. Process issued thereon is valid. 
Hagler v. Pacific Fire Ins. Co., 36 Ga. App. 530, 137 S. E. 
293. 

When Service Made upon Former Agent. — The fact that 
no legal service could be perfected upon the defendant in- 
surance company in the instant case, because at the time 
of filing the petition there was no agent of the defendant 
in the county upon whom service could be legally perfected, 
does not affect the validity of the process, but affects only 
the validity of the service perfected by serving the former 
agent in the county, who, at the time of service, was not 
an agent of the company and upon whom legal service could 
not be perfected. The process, therefore, being valid, was 
subject to amendment. This case is distinguishable from 
that of Union Marine Fire Ins. Co. v. McDermott, 31 Ga. 
App. 676, 121 S. E- 849. Hagler v. Pacific Fire Ins. Co., 36 
Ga. App. 530, 137 S. E- 293. 

§ 2564. (§ 2146.) Service on non-resident, as- 
sessment, etc., insurance companies. 

Process under Section 2563 Perfected under This Section. 

— Service upon the defendant company under process issued 
in accordance with section 2563 can be perfected, under 
this section by leaving a copy of the petition with the com- 
pany's agent in the county, if there be one. Hagler v. Pa 
cific Fire Ins. Co., 36 Ga. App. 530, 137 S. E. 293. 



bawclflbrary 

Unive? Railroads Georgia 

SE 



DriTOfcrernove 

DIVISION 3 

Corporate Powers of Railroads 
§ 2585. (§ 2167.) Powers of such roads. 

Use of Street. — As a general rule, a railroad company 
must obtain the written consent of the municipal authori- 
ties before it can lay a track on any street of a city in this 
State. Tift v. Atlantic, etc., R. Co., 161 Ga. 432, 443, 131 
S. E- 46. 

§ 2585(1). Authority to build, relocate, etc. 

Approval of Railroad Commission Required. — The right of 
condemnation given by this and the following section can 
not be exercised until the railroad commission of this State 
shall first approve the taking of the property or right of 
way designated for the public use or uses desired. Tift v. 
Atlantic, etc., R. Co., 161 Ga. 432, 440, 131 S. E. 46. 



SECTION 2 
Georgia Public Service Commission 

§ 2618. (§ 2185.) Suspension of commissioner 
from office. 

Cited in Myers v. United States, 272 U. S. 52. 

§ 2663. Jurisdiction of the commission. 

Regulating Baggage. — This section confers the power upon 
the Public Service Commission to issue an order requiring 
a terminal company to receive and check to its destination 
certain properly identified baggage. Atlanta Terminal Co. 
v. Georgia Pub. Service Comm., 163 Ga. 897, 137 S. E- 556. 

§ 2670(1). Name changed to public service 
commission,, authority, rights, etc. 

Cited and applied in Atlanta Terminal Co. v. Georgia 
Pub. Service Comm., 163 Ga. 897, 137 S. E- 556, holding that 
the commission has power to issue order respecting, re- 
ceiving and checking baggage. 

3] 



§ 2674 



OPERATION OF RAILROADS 



§ 2677(18) 



SECTION 3 
Operation of Railroads 
§ 2674. (§ 2221.) Extent of such crossings. 

Railroad Owes No Duty to Maintain Highway. — A rail- 
road company is under no duty to maintain a public high- 
way, which traverses its right of way, in a condition safe 
for travel at a point where the highway is not crossed by 
the company's tracks or at a point not so close to such 
crossing as to render the repair of the highway at this 
point "necessary for a traveler to get off, and on the 
crossing safely and conveniently." Hall v. Georgia South- 
ern, etc., R. Co., 34 Ga. App. 786, 131 S. E. 187. 

§ 2677(2). Blow-post; signal of crossing; look- 
out and exercise of care. 

Failure to Comply with Section as Negligence. — If the 

failure to comply with the section is not the proximate 
cause of the injury, for example where no post is erected 
but the engineer nevertheless blew the whistle in accord- 
ance with the legal requirements, the presumption of neg- 
ligence is conclusively rebutted. Stanford v. Southern R. 
Co., 36 Ga. App. 319, 136 S. E. 804. 

§ 2677(16). Elimination of grade crossings. — 

Section 1. Be it enacted by the General Assem- 
bly of the State of Georgia, and it is hereby en- 
acted by authority of the same, that from and 
after the passage of this Act, when in the judg- 
ment of the State Highway Department of Geor- 
gia it is practicable and, in the interest of public 
safety, reasonably necessary, the State Highway 
Department may authorize and direct the elimi- 
nation of grade-crossings on the State road sys- 
tem; and that when in the judgment of the 
board of commissioners of roads and revenues of 
any county in the State of Georgia, or of any 
other authority having jurisdiction over and con- 
trol of the public roads of that county, it is prac- 
ticable and, in the interest of public safety, rea- 
sonably necessary, such board of commissioners 
of roads and revenues, or such other authority 
having jurisdiction over and control of the pub- 
lic roads of the county, may authorize and direct 
the elimination of grade-crossings on the public 
roads of said count}^; provided, that any such 
elimination of a grade crossing shall be in ac- 
cordance with the provisions of this Act, and 
that no elimination of a crossing at grade of a 
public county road (as distinguished from a road 
which constitutes a part of the State highway 
system) shall be eliminated under the provisions 
of this Act, upon direction or order of any such 
county authority, until and unless the State 
Highway Department of Georgia shall approve 
any such order of any such county authority, and 
shall concur therein. Acts 1927, p. 299. 

§ 2677(17). Same— Definitions.— For the pur- 
poses of this Act, the following definitions shall 
apply: 

"Grade crossing." A crossing at grade of a 
public road intersecting a track or tracks of a 
railroad or railroads. 

"Department." The State Highway Depart- 
ment of Georgia as constituted under the laws 
of this State. 

"Boards." The boards of commissioners of 
roads and revenues of the several counties of the 
State, or any other duly constituted authority 
having jurisdiction over and control of the pub- 
lic roads in the counties, in and for the control of 
which such board or other authority is consti- 
tuted under the laws of the State of Georgia. 

[7 



"Railroads." All steam-railroads and interurban 
electric or gasoline railways of more than twenty 
miles in length, which are operated as common 
carriers, but shall not include street-railways op- 
erated in whole or in part within the corporate 
limits of a city or town, nor logging railroads not 
operated as common carriers. 

"Overpass." A bridge and approaches thereto 
for carrying highway traffic over a railroad. 

"Underpass." A bridge and approaches there- 
to for carrying a railroad over a highway or 
other public road which is within the purview of 
this Act. 

This Act may be cited as the "Grade-crossing 
Elimination Act." 

§ 2677(18). Same— Notice to railroad com- 
pany; adoption of layout. — Whenever the de- 
partment, with reference to State roads, or a 
board, with reference to county public roads, 
shall direct the elimination of any grade-cross- 
ing by means of an underpass, overpass, or by re- 
location, or shall direct the guarding of a grade- 
crossing by an automatic signaling device, 
prompt notice of the order in such regard shall 
be given to the railroad company or companies 
involved; and within ten (10) days thereafter 
the representative of the department or board 
and of the railroad or railroads involved shall 
meet, and thereafter, within a reasonable time, 
adopt a layout mutually satisfactory for the con- 
struction of a grade separation structure or au- 
tomatic signalling device. Any such layout so 
adopted by or through the representatives of a 
board and of a railroad shall be submitted to the 
department for its approval, and no work looking 
to the elimination of the grade-crossing pursuant 
to the plans so adopted shall be begun until and 
unless the department concur therein and ap- 
prove the same, or unless the railroad or rail- 
roads involved may agree that its or their por- 
tion of the expense involved in the elimination of 
such grade-crossing shall not be charged against 
the maximum sum which any one railroad may 
be required to expend in any one calendar year 
under any or all of the provisions of this Act, as 
hereinafter provided. Failing to agree within a 
reasonable time, then the department or (as the 
case may be) a board may order the railroad or 
railroads involved to proceed with the construc- 
tion of such grade separation structure as it may 
be required, and as indicated in the plans and 
specifications accompanying its order; provided, 
however, that no order of a board entered in 
such regard shall be binding until and unless the 
same be concurred in and approved by the de- 
partment. It shall be the duty of said railroad or 
railroads to begin work on any such grade sepa- 
ration structure within sixty (60) days after the 
receipt of a binding order to that effect, and to 
complete the structure within a reasonable time; 
provided, however, that in no event shall the 
railroad or railroads be required, without its con- 
sent, to do the actual physical work in providing 
approaches by fill to an overhead structure or the 
excavating beneath the supporting structure of 
an underpass or the approaches thereto, but the 
cost of such work shall be considered a part of 
the cost of the grade elimination, whether ac- 
tually performed by the railroad or the depart- 

4] 



§ 2677(19) 



OPERATION OF RAILROADS 



§ 2677(25) 



ment or board, and such cost shall be appor- 
tioned as hereinafter provided. 

§ 2677(19). Same — Agreement to apportion 
work. — The department or board may, by agree- 
ment with any railroad company, apportion the 
work to be done in the construction of any grade 
separation structure, between the railroad com- 
pany or companies and contractors acting under 
the control and supervision of the department or 
of the board; provided, that whenever the de- 
partment or a board, or any of its or their em- 
ployees or contra [contractors] acting under the 
orders of the department or board:, or of its or 
their contractors, shall go upon or be upon the 
right-of-way of the railroad company, they shall 
be subject to any reasonable rules and regula- 
tions of such railroad made for the protection of 
its traffic, employees, and passengers. 

§ 2677(20). Same — Space for additional track. — 

When either an overpass or an underpass is con- 
structed under the provisions of this Act, the 
same shall be so designed and constructed as to 
be sufficient to accommodate at least one rail- 
road-track in addition to those existing at the 
time of said construction, unless this requirement 
is waived by the railroad. 

§ 2677(21). Same — Division of cost.— The di- 
vision of the costs of elimination of grade-cross- 
ings by means of grade separation structures 
shall be as follows: 

(a) The total cost of surveys and of the prepa- 
ration of the plans and specifications, and of the 
estimates of the cost thereof, shall be paid, one 
half by the department or county board, and one 

half by the railroad or railroads involved. 

(b) The total cost of a grade-crossing elimi- 
nation by the use of an overpass or underpass, 
including the establishment of drainage, shall be 
paid, one half by the department or (as the case 
may be) the board, and one half by the railroad 
or railroads involved; provided, that the con- 
struction expense in which the railroad or rail- 
roads involved may be required to participate 
shall be confined to the grade-separation structure 
and the approaches thereto not exceeding three 
hundred (300) feet on each side from the center 
line of the track or tracks as measured along the 
center of the highways. The approaches shall 
not be regarded as extending farther than from 
grade point to grade point, and the railroad shall 
not be charged with any cost of paving, except 
on the flooring of an overpass. 

(c) In no plan providing either for an over- 
pass or underpass shall the department or board 
interfere with or change the grade or alignment 
of the tracks of any railroad, or relocate the line 
of the railroad, without its consent. Nothing 
herein, however, shall prevent the department or 
county board and the railroad or railroads in- 
volved from mutually agreeing to the change of 
the grade or alignment of any track or tracks, or 
the relocation of the same, and in case of such 
an agreement the expense of making such 
change shall be borne equally by the department 
or board and the railroad or railroads involved; 
provided, that such change in the railroad-tracks 
has been made at the written request of the de- 
partment or county board. 



§ 2677(22). Same — Automatic signaling de- 
vice, required when. — Whenever in the judgment 
of the department the installation of an auto- 
matic signaling device may be reasonably re- 
quired at a grade-crossing of a State road, and 
whenever in the judgment of a board the in- 
stallation of an automatic signaling device may 
be reasonably required at a grade-crossing of a 
county road, the department or (as the case may 
be) a board may require, by written order, the 
railroad or railroads involved to provide such au- 
tomatic signaling device as may be appropriate. 
In any such case the expense of acquiring and 
installing such device shall be divided equally 
between the department or county board and the 
railroad or railroads involved, but the railroad or 
railroads involved shall at its or their own ex- 
pense maintain the same. 

§ 2677(23). Same — Underpass or overpass un- 
safe or inadequate; improvement. — Whenever in 
the judgment of the department exercised in re- 
spect of a State road, or in the judgment of a 
county board exercised in respect of a county 
public road, an existing underpass or overpass, 
constructed prior to the approval of this Act, is 
unsafe or inadequate to serve the traffic for 
which it was constructed, then the department, 
when State roads be involved, or the board, 
when county public roads be involved, may pro- 
ceed to bring about the improvement or better- 
ment of the existing structure. And in any such 
event the procedure and division of the cost of 
construction and the cost of the maintenance of 
such improvement or betterment, shall be as 
herein set forth in section 2677(18), (19), (20), 
(21) and (24) of this Act. 

§ 2677(24). Same — Maintenance of overpass, 
etc. — After the construction of an overpass or 
underpass, it shall be the duty of the department 
in the case of State roads, and of the county 
board in the case of county public roads, to 
maintain at its or their own expense the drain- 
age, surface, and pavement of the highway and 
bridge, as well as the approaches and guard-rails, 
if any; except that when an overpass is con- 
structed with a floor of wood, then the railroad 
or railroads shall maintain such floor. It shall 
be the duty of the railroad or railroads to main- 
tain at its expense the foundations, piers, abut- 
ments, and superstructures of all underpasses 
and overpasses located within the limits of its 
right-of-way. 

§ 2677(25) Same — Selection of material. — The 

railroad company or companies involved shall 
have the right to select the material to be used 
in the construction of the grade-separation struc- 
ture, provided that such material shall not be 
less durable than creosoted timber of a quality at 
least equal to that required by the standard 
specifications of the department for its own 
bridge work. Neither the department nor any 
county board shall require any railroad company 
to construct an underpass of a design, specifica- 
tion, or plan, the strength of which, in the judg- 
ment of the railroad company, shall not be suffi- 
cient to meet the requirements of its traffic 
thereover. In no event shall any railroad com- 
pany be required to participate in the cost of the 



[75] 



§ 2677(26) 



INJURIES BY RAILROADS 



§ 2780 



construction of any overhead bridge upon a basis 
or proportion in excess of the cost of a bridge 
that would be suitable to carry ordinary highway 
traffic according to the standards of the depart- 
ment, which standards are now for a strength 
sufficient to support a fifteen-ton roller. 

§ 2677(26). Same — Judicial review of order, 
etc., of department or board. — Any judgment, 
decision, or order of the department, or of any 
county board, whether entered upon any ques- 
tion involving the practicability, advisability, or 
necessity of eliminating any crossing at grade or 
involving the apportionment of cost of construc- 
tion, or any other question arising under this 
Act, shall be subject to judicial review. Pending 
the final determination of any proceeding at law 
or in equity so instituted, the department or any 
count}'" board may, without prejudice to either 
party, and at its own risk, proceed with the work 
of eliminating the crossing at grade involved in 
such litigation, subject to final judgment of the 
court as to all questions involved in such litiga- 
tion. 

§ 2677(27). Same — Special agreements as to re- 
location, etc. — Nothing in this Act shall be con- 
strued to prevent such department or county board 
from reaching special agreements with railroad 
companies providing for grade-crossing elimina- 
tion by means of relocation of either the railroad 
or highway involved, or by other means and ar- 
ranging for joint participation in the cost of such 
elimination on an agreed basis. 

§ 2677(28). Same— Use of right of way.— In 
all cases where grade-separation structures are 
built hereunder, the railroad shall permit the 
use, free of cost, of so much of its right-of-way 
as may be necessary. 

§ 2677(29). Same—Cost where different rail- 
roads involved. — Where more than one railroad 
is involved in the separation of crossings at grade, 
that portion of the cost of construction and 
maintenance which this Act provides shall be 
paid by the railroad or railroads shall be 
apportioned between such railroads by agree- 
ment; and in case they can not agree, the same 
shall be fixed by the department or (as the case 
may be) by the county board, after a hearing, 
subject to a judicial review as provided in section 
11, 2677(26) of this Act. 

§ 2677(30). Same — Crossings closed; status of 
crossings in case of relocation. — All existing 
grade-crossings replaced by grade-separation 
structures, or avoided by relocation of highways 
and no longer used by the general public, shall, 
where possible, be closed, and where continued 
shall be private crossings and not subject to the 
provisions of the statutes of Georgia relating to 
railroad-crossings. 

§ 2677(31). Same — Limit of annual expendi- 
ture of railroad. — No railroad shall be required 
to expend in any one calendar year, under any 
or all of the provisions of this Act, a sum in ex- 
cess of $40,000.00; provided that no railroad 
whose gross earnings from both inter and intra- 
state business in the State of Georgia, as re- 
ported to the Public Service Commission of 
Georgia for the preceding calendar year, did not 



exceed $2,000,000.00 shall be required without 
its consent to expend in any one calendar year, 
under the provisions of this Act, a sum in excess 
of $3,000.00. In any case where the proportion- 
ate part to be paid by a railroad for the elimina- 
tion of a crossing at grade, when added to 
amounts theretofore expended and /or for which 
obligations have been incurred, would exceed the 
amount which a railroad maj' be required to ex- 
pend under the provisions of this section, the de- 
partment may pay the excess over and above the 
aggregate of payments legally permissible for 
requirement of the railroad, and thereafter collect 
the same with legal interest during succeeding 
calendar year or years; but nothing herein con- 
tained shall be construed as requiring any rail- 
road company to expend in grade-elimination 
costs and protection in any one calendar year 
more than the applicable amount as hereinbefore 
specified. 



SECTION 6 

Railroads as Common Carriers, and Herein of 
Other Carriers 

§ 2712. (§ 2264.) Common carrier. 

III. DEFENSES. 

Generally. — See Central, etc., R. Co. v. Council Bros., 36 
Ga. App. 573, 137 S. E- 569, stating in part the rule set out 
under this catchline in the Georgia Code of 1926. 

Act of God — Distinguished from Unavoidable Accident. — 
An act of God means any act produced by physical causes 
which are inevitable. In other words, unavoidable acci- 
dents are the same as the acts of God. Central, etc., R. 
Co. v. Council Bros., 36 Ga. App. 573, 137 S. F- 569; Fish v. 
Chapman, 2 Ga. 349, 46 Am. Dec. 393. These cases seem 
to conflict with Harmony Grove Tel. Co. v. Potts, 2 4 Ga. 
App. 178, 180, 100 S. F- 236, where it wis said that a dis- 
tinction exists between an act of God and an unavoidable 
accident. It appears though that in the Fish case, and in 
the Central of Ga. Ry. Co. case, only phenomena were with- 
in the contemplation of the courts, while in the Telephone 
Co. case the court was considering not only natural acci- 
dents, which were appropriately classed as acts of God, but 
also "accidents arising from the negligence or act of man," 
which are classed as unavoidable accidents. It is submitted 
that unavoidable accidents is a broad and comprehensive 
classification, including not only "the negligence or act of 
man," but also "natural accidents." The so called acts of 
God are as unavoidable as the acts of man.— Fd. Note. 

§ 2713. (§ 2265.) Bailee must show no con- 
curring negligence. 

Necessary Proof When Accident Result of Vis Major. — 

The rule applicable, were it alleged that the damage had 
been brought about by some vis major, such as an earth- 
quake, lightning, or flood, in which the human element 
does not and could not enter, would seem to be that where 
it is alleged that the damage was thus occasioned, it is not 
necessary for the carrier to show that such an occurrence 
was in a legal sense an act of God, and its defense would be 
complete upon proof being made that its own negligence did 
not contribute to the loss thus caused by an occurrence over 
which it had no control. Southern R. Co. v. Standard 
Growers Fxch., 34 Ga. App. 534, 130 S. F- 373. 

§ 2730. (§ 2279.) Time of responsibility. 

Ending of Responsibility as Carrier. — See Central, etc., R. 
Co. v. Leverette, 34 Ga. App. 304, 129 S. E. 292, following 
the principle stated in paragraph two under this catchline 
in the Georgia Code of 1926. 



SECTION 8 
Injuries by Railroads 
§ 2780. (§ 2321.) Damages by running of cars, 



etc. 



I. IN GENERAL. 
Presumption of Proximate Cause. — Under the section there 



76] 



§ 2781 



TRUST COMPANIES— ACT OF 1927 



§ 2821(16) 



arises, upon proof of injury to a person by a servant of a 
railroad company, not on!y a presumption of negligence of 
the company, but a presumption that the company's negli- 
gence was the proximate cause of the injury. Western, etc., 
Railroad v. Dobbs, 36 Ga. App. 516, 137 S. E). 407. And a 
charge to the jury which amounts to an instruction to this 
effect is not error. Id. 

Section Modifies General Rule as to Liability of Master. — 
The general rule that the master is liable for the acts of his 
servants when done within the scope of their employment, 
whether the act is wilful or otherwise, is modified as to 
railway cases, by this section. Furney v. Tower, 36 Ga. 
App. 698, 137 S. E. 850. 

For What Acts Liable. — Before the presumption of negli- 
gence against a railway company under this section can 
arise it must be shown that the act complained of was per- 
petrated by the servant in the conduct of the business of 
his employment, as the section should be construed with 
section 4413. Latimore v. Louisville, etc., R. Co., 34 Ga. 
App. 263, 129 S. F. 108. But it is immaterial whether the 
act done was in the scope of the servant's particular em- 
ployment. Furney v. Tower, 36 Ga. App. 698, 137 S. F- 850. 

II. APPLICATION OF RULE. 

Injury to Dog. — In Alabama Great Southern R. Co. v. 
Buchannon, 35 Ga. App. 156, 157, 132 S. F- 253, it was said 
by Luke, J., who delivered the opinion: "A prima facie 
case was made for plaintiffs by proof that the dog was 
killed by the defendant's locomotive, and there should have 
been a recovery unless the company made it appear that its 
agents exercised all ordinary and reasonable care and dil- 
igence. It was the duty of the company, through its 
delegated agents and employees, to keep a lookout ahead of 
the train and to use ordinary and reasonable diligence to 
discover the dog upon the track and to avoid injuring it." 

III. PRACTICE AND PLEADING. 

Charge Improperly Construing Section. — Where the trial 
judge charged the jury as follows: "I charge you that the 
burden of proof in this case rests upon the plaintiff, that is 
the burden of proof is upon the plaintiff to satisfy the minds 
of the jury by the preponderance of the testimony of all the 
material allegations set out in the original petition in this 
case and the amendments that have been made and al- 
lowed by the court in the trial of this case," it was held 
that this excerpt deprived the plaintiff of the benefit of the 
presumption arising in proper cases under the section and 
was erroneous. Central, etc., R. Co. v. Bridwell, 34 Ga. 
App. 77, 84, 128 S. F. 238. 

§ 2781. (§ 2322.) Consent of negligence. 

Comparative Negligence Law. — Where a trial judge charged 
the jury in substance that where both parties were negli- 
gent, but the plaintiff could not have avoided injury by the 
exercise of ordinary care, and the defendant's was greater 
than that of the plaintiff, that the rule of comparative neg- 
ligence and consequent diminution of damages was appli- 
cable, it was held upon appeal, that this instruction did not 
contravene the rule laid down in Americus, etc., R. Co. v 
Luckie, 87 Ga. 6, 13 S. F- 105, nor did it exclude the de- 
fense that the plaintiff's injury was brought about by his 
own failure to exercise ordinary care. Atlantic Coast Line 
R. Co. v. Anderson, 35 Ga. App. 292, 133 S. F- 63. 

Duty to Charge on Request. — Where the evidence author- 
ized the inference that the plaintiff was negligent, it was 
error prejudicial to the defendants not to comply with a 
written request to charge in effect the rule of this section. 
Southern R. Co. v. Bottoms, 35 Ga. App. 804, 134 S. F- 824. 

And a charge that the damage which the plaintiff would 
be entitled to recover should "be reduced as you may find 
their negligence to be" is not a full and clear statement of 
the rule. Southern R. Co. v. Bottoms, 35 Ga. App. 804, 134 
S. F. 824. 



§ 2782. Injury by coemployee. 

Conclusiveness of Presumption. — The presumption of neg- 
ligence against the employer, arising under this section, 
from death of a railroad employee, is not conclusive, and, if 
rebutted by, uncontradicted and unimpeached evidence, the 
court should direct the verdict for the defendant. Walker 
v. Charleston, etc., R. Co., 8 Fed. (2d), 725. 

In an action for death of a railroad employee, supposedly 
killed when handle of alleged defective jack under freight 
car flew violently up and struck him under the chin, the 
presumption of negligence, arising under this section, was 
conclusively rebutted, and the verdict for the defendant was 
properly directed. Walker v. Charleston, etc., R. Co., 8 
Fed. (2d), 725. 



§ 2788. (§ 2324.) Receiver's liability to em- 
ployees. 

Consent of Appointing Court Not Requisite to Suit. — This 
section and the following section (section 2789) are excep- 
tions to the general rule that before a suit can be main- 
tained against a receiver appointed by the courts of this 
State it is necessary for the consent of the appointing court 
to be obtained. Bugg v. Lang, 35 Ga. App. 704, 134 S. F. 
623. And no consent is necessary by the express terms of 
the Judicial Code (U. S. Comp. Stat. 1916, section 1048) 
when the appointment is by a Federal Court. Id. 

Effect upon Federal Receivers. — The authority extended 
under the Federal statute for suits in the State courts 
against Federal receivers is paramount, and is in no wise 
affected by this section. Bugg v. Lang, 35 Ga. App. 704, 134 
S. F. 623. See also Fddy v. Lafayette, 49 Fed. 807, 1 C. C. 
A. 441. 



SECTION 11 

Suits Against Railroads and Electric Companies. 

§ 2798. (§ 2334.) Must be sued where action 
originates; definition of "electric companies." 

Venue of Continuous Tort to (Passenger. — This law is ap- 
plicable in a case where a passenger brings suit in tort 
against a railroad company for negligence in carrying her 
beyond her destination in a particular county and through 
that county into another state, where further damages re- 
sult from the continued wrong; and where the railroad com- 
pany has an agent in the county where the tort originated, 
the venue of a suit for such injury is exclusively in that 
county. Southern R. Co. v. Clark, 162 Ga. 616, 134 S. F^ 
605. 



ARTICLE 8 
Trust Companies 



SECTION 5 

Act of 1927 

§ 2821(15). Definitions. — The term "trust 
company" shall r^e construed to mean a corpora- 
tion having power to execute trusts, and to act 
in any fiduciary capacity, whether such corpora- 
tion has been heretofore organized under the pre- 
vious acts of the General Assembly of this State 
or as hereafter organized under this act or any 
amendment thereto. The term "person" as used 
in this act shall be construed to mean an individ- 
ual, a partnership, or an incorporated association. 
The word "superintendent," as used in this Act 
refers to and shall mean the Superintendent of 
banks. Acts 1927, p. 344. 



§ 2821(16). Unauthorized use of the word 
trust company. — No corporation or person, ex- 
cept a corporation duly authorized to do a trust 
business in this State, shall as a designation or 
name or part of a designation or name, under 
w T hich business is or may be conducted make use 
of the word "trust" in any corporate, artificial, 
or business name or title, or make use of any of- 
fice sign at the place where such business is 
transacted having thereon any word or words 
indicating that such is the place or office of a 
trust company. And the use or circulation of any 
letterheads, billheads, blank forms, notes, receipts, 
certificates, circulars, or any written or printed 
or partly written and partly printed paper what- 
ever having thereon any word or words indicat- 
ing that such business is the business of a trust 
company, is prohibited to any corporation or per- 
son except those duly authorized under the laws 
of this State to do a trust business. Except as 
[77] 



§ 2821(17) 



TRUST COMPANIES— ACT OF 1927 



§ 2821(25) 



herein otherwise indicated, the provisions of this 
Act shall apply to all trust companies heretofore 
incorporated or doing business at the date of the 
approval of this Act as well as those hereafter 
incorporated or established. Provided, however, 
that any corporation regularly chartered and or- 
ganized and engaged in business on the date of 
the approval of this Act may continue to use its 
corporate name, but where the words "trust" or 
"trust company" are a part of such corporate 
name, the corporation shall on all signs, adver- 
tisements, letterheads, billheads, and other printed 
forms, use in connection with its corporate name 
the words, "Not under State Supervision." 

§ 2821(17). Duties and powers of the superin- 
tendent of banks. — Except as may hereafter be 
prescribed by law, the Superintendent of Banks, 
in addition to the duties and powers prescribed 
in this Act, shall have, possess, and exercise all 
that jurisdiction, control, supervision, and author- 
ity over trust companies organized or doing busi- 
ness under this Act, which he now has or may 
hereafter be given by the laws of this State over 
State banks. He shall require reports and make 
examinations of said trust companies in like man- 
ner as is now required of State banks. Trust 
companies for this examination, supervision, and 
control shall pay to the Superintendent of Banks 
the same fees that State banks are now or may 
[hereafter be required to pay. The funds derived 
from this source shall be used to defray the ex- 
penses of the Department of Banking. 

§ 2821(18). Guaranty. — That no trust company 
shall engage in or guarantee the payment of bonds 
and notes secured by mortgage or deed to real 
estate within the State of Georgia, or secured by 
pledge of any choses in action, unless it shall first 
set apart an amount of its assets, the same to be 
fixed by the Superintendent of Banks, but in no 
event to be less than ten thousand ($10<000,00) 
dollars, as a guaranty fund, which said guaranty 
fund shall be maintained, unimpaired, or invested 
in bonds of the United States, or of this State, or 
of any political subdivision of this State, when 
and as required to do so by the said superintend- 
ent, so long as any guaranty is outstanding. The 
superintendent shall have the right to designate 
the place where said guaranty fund shall be de- 
posited. This restriction shall be in addition to 
the restrictions now imposed by law on trust com- 
panies doing business in this State. 

§ 2821(19). Trust companies receiving depos- 
its. — That no trust company shall be allowed to 
receive deposits of any character unless and un- 
til its charter shall have been amended so as to 
confer upon it banking powers and privileges; 
and when such amendments shall have been ob- 
tained and the Superintendent of Banks shall have 
issued his permit for said company to receive de- 
posits and do business as a bank, it shall be sub- 
ject to all the provisions of the law relating to 
banks. Provided, that trust companies heretofore 
incorporated under the laws of Georgia, w T ith 
power in their original or amended charters to 
receive deposits, and that are now conducting 
their business and reporting to the Superintend- 
ent of Banks, shall not be required to further 
amend their charters in order to continue con- 
ducting such business, but they shall be subject 



to all the provisions of banking laws of this 
State, subjecting them to the inspection and su- 
pervision of the Superintendent of Banks, and 
their dealing in stocks, bonds, and other securi- 
ties shall be subject to inspection and approval 
of the Superintendent of Banks. 

§ 2821(20). Dealing in stocks and bonds. — 

Trust companies operating as investment bank- 
ers, and maintaining departments for the pur- 
pose [purchase?] and sale of securities, may pur- 
chase for resale whole issues ©r parts of issues 
of stocks, and debentures of industrial, railroad, 
and public-service corporations, and other invest- 
ment securities, and may resell and deal in the 
same under such regulations as may be prescribed 
by the Superintendent of Banks. 

§ 2821(21). Amendment to charters. — That the 
method of obtaining an amendment to the char- 
ter of trust company, so as to confer upon it 
Danking powers and privileges, and authorize it 
to receive deposits, shall be the same as that pro- 
vided for the amendment of the charter of a bank 
by sections 1 to 7, inclusive, of article 19 of the 
Banking Act of 1919, except that the amendment 
must be authorized by the vote of two-thirds of 
the outstanding capital stock. When the charter 
shall have been amended, the stockholders shall 
be liable to depositors to the same extent as are 
the stockholders of a bank under article 18 of 
the Banking Act. 

§ 2821(22). Surrender of authority to receive 
deposits, etc. — Any trust company that has here- 
tofore or may hereafter acquire the right to re- 
ceive deposits, and thereby become subject to the 
provisions of this Act, shall have the right to sur- 
render to the Secretary of State its authority to 
receive deposits and to do a banking business, 
without impairing in any respect its charter rights 
to conduct a trust company business, and there- 
upon shall cease to have the right to receive de- 
posits, but may conduct business as a trust com- 
pany as though it had never had the right to re- 
ceive deposits or to do a banking business. 

§ 2821(23). Time in which amendment ob- 
tained. — Trust companies which have not acquired 
banking powers, but are receiving savings or 
other deposits, shall be allowed twelve months 
from the date of the approval of this Act to se- 
cure amendments to their respective charters, 
conferring such powers, or to pay off and settle 
with their depositors. 

§ 2821(24). Penalty. — Any person who as an 
officer of any corporation or in his individual ca- 
pacity shall violate the provisions of this Act, or 
who shall knowingly permit the violation thereof 
by any corporation with which he is connected, 
shall be guilty of a misdemeanor. 

§ 2821(25). Certain corporations not affected 
by this Act. — Nothing in this Act shall be con- 
strued to affect, embrace, or include, or to bring 
w T ithin the operation of this Act any corporation 
chartered by the Superior Court, having trust 
company powers and without banking powers, 
and which does not receive deposits subject to 
check, and which invests its funds in loans on real 
estate. 

Approved August 25, 1927. 



[78] 



§ 2823 



MARRIAGES, HOW AND BY WHOM CONTRACTED 



§ 2938 



ARTICLE 9 
Corporations Created by Superior Court 



SECTION 1 

How Incorporated and Dissolved. 

§ 2823. (§ 2350.) Superior courts may create 
what corporations. 

Constitutional Provision. — In 1912 the constitution was 
amended so as to provide that the General Assembly "may 
confer this authority to grant corporate powers and privi- 
leges to private companies to the judges of the superior 
court in vacation." It will be noted that at present the su- 
perior courts receive their power to create corporations by 
virtue of the constitution. This power, however, "shall be" 
exercised in the manner which the legislature "shall pre- 
scribe by law." Free Gift Society v. Fdwards, 163 Ga. 857, 
864, 137 S. F- 382. 

Courts May Not Delegate Power. — There is no provision 
of our constitution or statute law authorizing the superior 
court to commit its delegated powers to a corporation which 
the court creates by virtue of the power given it by the con- 
stitution and law, so as to authorize the corporation thus 
created to itself charter other corporations without regard 
to the provisions of our law concerning the acts necessary 
to be done before the court itself can create such corpo- 
rations. Free Gift Society v. Edwards, 163 Ga. 857, 864, 137 
S. E. 382. 

§ 2823(1). Charters granted in vacation. 

Amendment after Publication. — The order of incorpora- 
tion is not void where an amendment of the petition, chang- 
ing the period of incorporation from thirty to twenty years, 
is permitted after publication, on the ground that such an 
order was not based upon an application that had been pub- 
lished as required by law. Rogers v. Toccoa Fleet. Power 
Co., 163 Ga. 919, 137 S. F- 272. 

Act Changed Rule. — Prior to the passage and approval of 
this act the judge of the superior court was without juris- 
diction to grant a charter to a private corporation in vaca- 
tion in a county other than where the application was pend- 
ing. An order purporting to grant a charter in vacation and 
in another county is a mere nullity. Rogers v. Toccoa 
Power Co., 161 Ga. 524, 131 S. F. 517. 



SECTION 2 
Schools, Churches, Societies, etc. 
§ 2830. (§ 2357.) Societies incorporated. 

Name, Style and Objects of Association. — Where a plain- 
tiff in its petition designates itself as Tremont Temple Bap- 
tist Church, and alleges that it is "a duly organized religious 
society, and that a certificate of said society has been duly 
filed and recorded in the office of the clerk of the superior 
court" of the county in which the church is located, this 
shows a sufficient compliance with the provisions of the sec- 
tion. Hartsfield v. Tremont Temple Baptist Church, 163 
Ga. 557, 136 S. F. 550. 



ARTICLE 10 
Co-operative Marketing Associations 



SECTION 1 

Under Acts of 1920 

§ 2928(1). Organization; capital stock; appli- 
cation; title; dividends; reserve, profits. 

Individual Liability of Members. — Individual liability for 
debts of a corporation can not be imposed upon all its mem- 
bers by a , by-law adopted by vote of a majority of the 
members where no provision for such liability is made by 
statute or charter. Corporations without capital stock are 
within this rule. Mitcham v. Citizens Bank, 34 Ga. App. 
707, 131 S. F. 181. 

Where an action is against the corporation and all its 
members, the petition should be dismissed on demurrer on 
the ground of misjoinder of parties. Mitcham v. Citizens 
Bank, 34 Ga. App. 707, 131 S. F. 181. 



CHAPTER 3 
Sale of Stocks, Bonds, etc. "Blue Sky Laws" 
§ 2928(47). License necessary. 

Persons to Whom Applicable — In Action for Commission. 

— The defendant, being the issuer, was not required to 
obtain a permit from the securities commission before put- 
ting the stock on the market. Fven if the agent or solicitor 
was required to do this before proceeding to sell the stock, 
there being nothing to show that when entering into the 
contract sued on the parties anticipated that the plaintiff 
would not comply with the law, the defendant can not es- 
cape liability for commissions merely because the agent, 
after the making of the contract, may have violated the 
criminal law in selling the stock without a license. Floding 
Inc. v. Gunter, 36 Ga. App. 450, 136 S. F- 798. 

§ 2928(50). Class "B" defined; act not applica- 
ble. 

Sale of Class "A" No Offense.— Taylor v. State, 34 Ga. 
App. 4, 128 S. F. 228. 



THIRD TITLE 
Of Domestic Relations 



CHAPTER 1 
Of Husband and Wife 



ARTICLE 1 
Of Marriage and Divorce 



SECTION 1 
Marriage, How and by Whom Contracted 
§ 2931 (§ 2412) Who is able to contract. 

Previous Marriage.— If a man who had a living wife un- 
divorced entered into a ceremonial marriage with another 
woman who was not shown to have known of the former 
marriage, and they cohabited as husband and wife from the 
time of such marriage and continued to do so after the 
death of the first wife, they will be considered thereafter as 
lawfully married. Hamilton v. Bell, 161 Ga. 739, 132 S. 
F. 83. 

§ 2938. Notice of application to be posted; con- 
sent of parent or guardian. — Immediately upon 
receiving application for a license the ordinary 
or his deputy shall post in the ordinary's office a 
notice giving the names and residents of the par- 
ties applying therefor, and the date of application. 
No license shall be issued earlier than five days 
following the date of application for such license, 
within which period of five days objections to the 
proposed marriage may be entered; provided the 
foregoing provisions shall not apply to persons 
who have arrived at the age of twenty-one years; 
and upon application for license being made, and 
the applicant therein claims the party to be twenty- 
one years of age, or over, it shall be the duty of 
the ordinary to whom application for license is 
made to satisfy himself that the applicant's con- 
tention as to age is true. If said ordinary does 
not know of his own knowledge that both par- 
ties for whom a marriage license is sought are 
twenty-one years of age, or over, shall require 
applicants to furnish birth certificates, or, in lieu 
thereof, affidavits from at least two persons show- 
ing the ages of both parties to be twenty-one years 
of age, or over; and upon the failure of applicant 
to convince the ordinary in the foregoing way, 
shall be required to post notice of said applica- 
tion for the period of five days, as is provided in 



[79] 



§ 2938(1) 



ALIMONY 



§ 2086 



Georgia Laws 1924, page 53; provided that in case 
of emergency or extraordinary circumstance the 
judge of the court having probate jurisdiction may 
authorize the license to be issued at any time be- 
fore the expiration of said five days. It shall be the 
duty of the ordinary and his deputy to inquire as to 
ages of all persons for whom marriage license are 
asked; and if there be any grounds of suspicion 
that the female is a minor under the age of 
eighteen years, such ordinary and his deputy shall 
refuse to grant the license until the written con- 
sent of the parents or guardian, if any, controlling 
such minor, shall be produced and filed in his 
office; and any ordinary who, himself or deputy, 
shall fail to post in his office facts pertaining to 
the application, or who shall issue a license in vio- 
lation of the time provision, shall knowingly grant 
such license without such consent, or without 
proper precaution in inquiring into the fact of 
minority, or for the marriage of a female to his 
knowledge domiciled in another county, shall for- 
feit the sum of $500.00 for every such Act, to be 
recovered at the suit of the clerk of the Superior 
Court, and added to the educational fund of the 
count}^. The posting of said notice may be dis- 
pensed with in the case the parents or guardian 
of the female appears in person before the ordi- 
nary and consents in writing to the issuance of 
said license. Acts 1924, pp. 53, 54; 1927, p. 224. 

Editor's Note. — The first proviso and all that follows it 
down to the second proviso was inserted by the amendment 
of 1927. The amendment also effected certain minor changes 
of phraseology not affecting the substance. 

§ 2938(1). Application for license; information 
as to impediments, etc. — Marriage license shall be 
issued under the rules prescribed by the preced- 
ing section on written application made by the 
person seeking license therefor, verified by oath 
of applicant, which application shall state that 
there is no legal impediment to marriage, and 
shall give the full name of the proposed husband, 
with date of birth, present address, and name of 
father and mother, if known, and if unknown shall 
so state, with present name of proposed wife with 
date of her birth and present address, with name 
of father and mother, if known, and if unknown 
shall so state, and shall be supported by affidavits 
of two reputable citizens of the United States of 
America as to truth of recitals in said applica- 
tion, which application shall be filed in the office 
of ordinary before marriage license shall be is- 
sued upon such application, and such application 
shall remain in the permanent files in the office 
of the ordinary, and may be used as evidence in 
any court of law under the rules of evidence made 
and provided in similar cases. Acts 1927, p. 226. 



SECTION 2 

Of Divorces, and How Obtained 

§ 2945. (§ 2426.) Grounds for total divorce. 

See annotations to section 2951. 

§ 2951. (§ 2432.) Proceedings. 

Right to Expressly Waive Certain Rights. — None of the 
provisions of this section or sections 2945, 2952 and 2975 af- 
fect the general principle which allows a litigant to ex- 
pressly waive rights accorded him upon which he may 
either insist or relinquish at his option. Don v. Don, 162 
Ga. 240, 243, 133 S. E. 242. 



§ 2954. (§ 2435.) Schedule. 

Filing in Case of Separation. — Where the parties have sep- 
arated it is error to order the schedule to be filed as of the 
date of filing petition for divorce. Smith v. Smith, 162 
Ga. 349, 133 S. E. 842. 

Cited in Meadows v. Meadows, 161 Ga. 90, 129 S. E. 659. 

§ 2955. (§ 2436.) Transfer pending suit. 

Section Not Applicable in Suit for Alimony without Di- 
vorce. — In a suit by a wife against her husband for alimony 
when no suit for divorce is pending, and no schedule of the 
husband's property is filed, it is not error on the trial, when 
an ancillary proceeding has been filed subsequently to the 
filing of the alimony suit, to cancel a deed executed by the 
husband to his sister, to refuse to give this section in charge. 
Chandler v. Chandler, 161 Ga. 350, 130 S. E- 685. 

Same — Bona Fides a Question for Jury. — In such a suit it 
was error for the court to charge that a certain deed which 
purported to convey to a third person, a large portion of the 
respondent's realty which was alleged in the petition was his 
property, did not have the effect to pass title to the grantee; 
it being a question of fact for the jury to decide whether it 
had been executed bona fide in payment of a pre-existing 
debt. Mathews v. Mathews, 162 Ga. 233, 133 S. E. 254. 

§ 2956. (§ 2437.) Verdict of jury. 

When Section Applicable. — This section only refers to cases 
where a divorce proceeding is pending. Chandler v. Chandler, 
161 Ga. 350, 130 S. E- 685. 

§ 2971. (§ 2452.) Custody of children. 

Award to Maternal Grandparents. — Conflicting evidence as 
to the fitness of either the father or the mother to have 
custody of the child, the judge does not abuse his discretion 
in awarding such custody to the maternal grandparents of 
the child. Phillips v. Phillips, 161 Ga. 79, 129 S. E- 644. 



(§ 2453.) Habeas corpus for wife or 



§ 2972. 
child. 

Procedure Same as for Habeas Corpus Generally. — No dif- 
ferent procedure is provided for obtaining a trial of the writ 
of habeas corpus under this section of the code from the pro- 
visions for the trial of habeas corpus generally, but it is 
contemplated that the writ shall issue and be tried under this 
section as provided in the sections relating to habeas corpus 
generally. Collard v. McCormick, 162 Ga. 116, 120, 132 S. E. 
757. 



SECTION 3 

Of Alimony 

§ 2975. (§ 2456.) Permanent and temporary. 

When Contention Macfe That Husband Has no "Estate." — 

Ifl the instant case the trial judge did not err in awarding 
temporary alimony and attorney's fees over the contention 
that the husband had no "estate" out of which the allowance 
could be made. Lundy v. Lundy, 162 Ga. 42, 132 S. E- 389. 



§ 2981. 
trial. 



(§ 2462.) Alimony for children on final 



Failure to Specify Amount Minor Child Entitled to, etc. — 

A verdict and decree in a divorce case are not void on the 
ground that the verdict allowing a stated sum as alimony for 
the support of the wife and child do not specify what amount 
the minor child should be entitled to for its support, nor 
in what manner, how often, nor to whom it should be paid. 
Cunningham v. Faulkner, 163 Ga. 19, 135 S. E. 403. 

When Charge Corrects Previous Error. — When the trial 
judge, in his charge, instructs the jury to specify "how 
often, to whom, and until when" the alimony for the child 
is to be paid, a previous statement that the father is liable 
for the support of his minor child until it arrives at the age 
of 21 years, is not thereby rendered harmless. Barlow v. 
Barlow, 161 Ga. 202, 129 S. E- 860. 

§ 2986. (§ 2467.) Proceeding for alimony be- 
fore the judge. 

For Express Use of Minor Child. — Under the circumstances 
of the instant case the trial judge did not err in entering a 
judgment awarding attorney's fees and alimony to the wife 
for the express use of the minor child. Waller v. Waller, 163 
Ga. 377, 136 S. E. 149. 



[80] 



§ 2996 



LEGITIMATE CHILDREN 



§ 3016 



ARTICLE 2 
Of Rights and Liabilities of Husband and Wife 

§ 2996. (§ 2477.) Agency of wife in respect 
to necessaries. 

Presumption of Husband's Duty of Support. — Cohabitation 
raises a presumption of the wife's authority to purchase 
necessaries on the credit of her husband; and where the 
husband seeks to avoid liability on account of purchases 
so made, he has the burden of "showing that the goods 
were supplied under such circumstances that he is not 
bound to pay for them." Shaw v. Allen & Co., 34 Ga. 
App. Ill, 113, 128 S. F. 699. It is submitted that this is not 
a case of agency proper, but rather has reference to the hus- 
band's legal duty to support his wife. So long as he owes 
her the duty of support he is bound for her necessaries. 
When this duty ceases to exist, the husband is no longer 
bound. This is to be distinguished from cases where the 
husband has held his wife out, by a course of dealing, as 
his agent. In the instant case the cohabitation merely 
raises the presumption of the husband's continued duty of 
support, and placing upon him the duty of showing that the 
wife has forfeited the right to his support. This is the gen- 
eral rule. — Ed. Note. 

Same — Agreement with Wife's Mother. — An agreement be- 
tween the mother and the husband, for the mother to take 
the wife to her home and bear the expense of her support and 
maintenance, was held not to relieve the husband from his 
obligation to support and maintain his wife. Akin v. Akin, 
163 Ga. 18, 135 S. F. 402. 



ARTICLE 3 
Of Marriage Contracts and Settlements 

§ 3007. (§ 2488.) Wife feme sole as to her 
separate estate. 

II. CONTRACTS OF SURETYSHIP. 
A. Generally. 

Applies to All Contracts — Question of Fraud. — Whether 
the lender could be defrauded into believing that a married 
woman could enter into a contract of suretyship, the mere 
tact that the defendant wife, together with her husband, 
may have known at the time of the transaction that her 
promise as a surety was not binding would not operate to 
change the rule and to render her liable on the contract 
where otherwise she was not. Rhodes v. Gunn, 34 Ga. App. 
115, 128 S. F. 213. 

Tests as to What Constitutes Suretyship Contract. — A 
wife can not bind her separate estate by any contract of 
suretyship nor by any assumption of the debts of her hus- 
band, and "No superficial appearance will be permitted to 
lead the court away from the true inwardness of the trans- 
action." Rhodes v. Gunn, 34 Ga. App. 115, 128 S. F. 213, 
citing Gross v. Smith, 31 Ga. App. 95, 119 S. F. 541. 

B. Conveyance to Secure Husband's Debt. 

In General. — A deed given by a married woman, in pur- 
suance of a scheme by which she pledges her individual 
property as security for the debt of another, is void in toto. 
Lee v. Johnston, 162 Ga. 560, 134 S. F. 166. 

To Secure Partnership Debt.— A note and deed given by 
a defendant is not binding upon her as a married woman, 
where it is given as security for a debt of a partnership of 
which her husband was a member, and it is immaterial 
whether the debt is assumed as security or paid as her 
husband's debt at the insistence of the creditor who knew 
all the circumstances upon which the payment was being 
made. Boykin v. Bohler, 163 Ga. 807, 137 S'. F. 45. 

III. ASSUMPTION OF HUSBAND'S DEBTS. 
A. In General. 
Validity of Indirect Method of Assuming Husband's 
Debts. — Where, by a scheme or device to which her hus- 
band's creditor is a party, a wife is induced to make a gift 
to her husband of her separate estate for the purpose of 
being used by the husband in the payment of his debt to 
the creditor, and the husband conveys the property to the 
creditor in extinguishment of the debt, such transaction 
may, at the instance of the wife, be treated as void and as 
passing no title from the wife. Calhoun v. Hill, 35 Ga. App. 
18, 131 S. F. 918. 

C. Loan to Wife to Pay Debts of Husband. 
Lender Husband's Creditor. — See Jackson v. Jackson, 161 

[81 



Ga. 837, 132 S. F- 79, citing and following the paragraph set 
out under this catchline in the Georgia Code of 1926. 

§ 3009. (§ 2490.) Sale to husband or trustees. 

Who May Attack.— See McArthur v. Ryles, 162 Ga. 413, 
134 S. F. 76, following and applying the paragraph set out 
under this paragraph in the Georgia Code of 1926. 

§ 3011. (§ 2492.) A married woman may con- 
tract; presumptions. 

Where Husband Wife's Agent. — Where a husband clothed 
by a written power of attorney, cancelled a certificate of 
stock standing in the name of his wife, and had a new cer- 
tificate issued to himself, even though the legal title passed 
to the husband, the shares were impressed with a trust, and 
they were in equity still the property of the wife, as were 
likewise all income or profits arising or derived from said 
stock. Bacon v. Bacon, 161 Ga. 978, 133 S. F. 512. 

Applied in Davis v. Barrett, 163 Ga. 666, 136 S. F. 904. 



CHAPTER 2 
Of Parent and Child 



ARTICLE l 
Legitimate Children 

§ 3016. (§ 2497.) Mode of adopting child — 

Any person desirous of adopting a child, so as 
to render it capable of inheriting his estate, may 
present a petition to the superior court of the 
county in which said child may be domiciled, 
setting forth the name of the father, or, if he be 
dead or has abandoned his family, the mother, 
and the consent of such father or mother to the 
act of adoption; if the child has neither father 
nor mother, the consent of no person shall be 
necessary to said adoption. The court, upon be- 
ing satisfied with the truth of the facts stated in 
the petition, and of the fact that such father or 
mother has notice of such application (which 
notice may be by publication, as required in eq- 
uity cases for non-resident defendants), or if the 
father or mother has abandoned the child, and 
being further satisfied that such adoption would 
be to the interest of the child, shall declare said 
child to be the adopted child of such person and 
capable of inheriting his estate, and also what 
shall be the name of such child; thenceforward 
the relation between such person and the adopted 
child shall be. as to their legal rights and liabili- 
ties, the relation of parent and child, except that 
the adopted father shall never inherit from the 
child. To all other persons the adopted child 
shall stand as if no such act of adoption had 
been taken. 

(a) Provided, that no person may adopt a 
child under this Act unless such person is (1) at 
least twenty-five years of age, or (2) married and 
living with husband or wife. The petitioner must 
be at least ten years older than the child, a resi- 
dent of this State, and financially able and morally 
fit to have the care of the child. If the child is 
14 years of age or over, his consent shall be nec- 
essary to the adoption. 



(b) The petition 
be filed jointly by 
person desiring to 
contain the name 
dress and age of 
which the child is 
ents are living or 
the living parents 

] 



, duly verified in duplicate, shall 
husband and wife, unless the 
adopt is unmarried, and shall 

and age of the child, the ad- 
the petitioner, the name by 

to be known, whether the par- 
not, names and addresses of 

or guardians, if known to the 



§ 3020 



MASTER'S LIABILITY TO SERVANT 



§ 3130 



petitioner, and a description of any property be- 
longing to said child. 

(c) Upon the filing of the petition the court 
shall issue summons to the next of kin, parents 
or guardians, brothers and sisters, if living within 
the State, and legal notice if a non-resident by 
service if possible, otherwise by publication once 
a week for four weeks in the official organ of the 
county where such proceedings are pending. 
After the expiration of thirty days from the date 
of filing of the petition, the case shall be placed 
upon the regular calendar of the court for a hear- 
ing before the judge without a jury, and the court 
shall hear evidence from witnesses as to the good 
character, moral fitness, and financial ability of 
the petitioner to care for the child, as well as all 
other allegations in the petition. When a child 
has been awarded by court order, or otherwise 
legally and permanently surrendered, to the cus- 
tody of a licensed child-placing agency for perma- 
nent placing in a foster home, such agency shall 
be served with summons in lieu of parents and 
relatives, and the written consent of such agency 
shall be filed with the court before adoption can 
be granted. 

(d) Upon the first hearing the court may pass 
an order only granting temporary custody of the 
child to the petitioner. Final adoption shall be 
granted only upon a second hearing after the 
child shall have been in the custody and care of 
the petitioner for a period of six months. 

(e) A copy of the decree of adoption shall be 
filed with the State Registrar of Vital Statistics. 
Acts 1855-6, p. 260; 1859, p. 36; 1882-3, p. 59; 
1889, p. 69; 1927, p. 142. 

Editor's Note.— The clauses (a), (b), (c), (d), and (e) of 
this section were added by the amendment of 1927. 

Presumrrtion That Proceedings Regular. — Every presump- 
tion is to be indulged to sustain a proceeding of adoption by 
a court of competent jurisdiction. Harper v. Lindsey, 162 
Ga. 44, 132 S. E. 639. 

Estoppel of Parents. — Where adoptive parents seek and 
obtain the decree they ask for in a court of their selection, 
and take the child or children so adopted into the family 
and treat them as their own, they and their heirs and per- 
sonal representatives are estopped from asserting that the 
child is not legally adopted. Harper v. Lindsey, 162 Ga. 
44, 132 S. E. 639. 

§ 3020. (§ 2501.) Parent's obligation. 

No Application to Alimony Proceedings. — This section has 
no application to proceedings for alimony. Barlow v. 
Barlow, 161 Ga. 202, 129 S. E. 860. 

When Mother Must Support Children. — See note under 
section 554. 

§ 3021. (§ 2502.) Parental power, how lost. 

In General. — The right to the services of children and the 
obligation to maintain them go together. Whatever de- 
prives the parent of the right to the custody and services 
of the child, without fault on his part, relieves him from the 
Huty to support the child. Thompson v. Georgia Ry. & P. 
Co., 163 Ga. 598, 603, 136 S. E. 895. 

Right to Earnings. — Where a minor child labors and 
earns money, the presumption is that the proceeds of his 
labor belongs to his father, if living; and where it is 
claimed that such in fact belongs to the minor, that pre- 
sumption must be overcome by proof of the fact that the 
father has, either expressly or impliedly, manumitted the 
minor so as to allow the proceeds of the labor to go to the 
minor. Jones v. McCowen, 34 Ga. App. 801, 131 S. E- 290. 

A father may give to a minor child the right to the pro- 
ducts of his labor which products cannot be levied on as 
property of the father. See Ehrlich & Co. v. King, 34 Ga. 
App. 787, 131 S. E. 524. 

Paragraph 5 — Effect of Marriage. — The child who mar- 
ries assumes inconsistent responsibilities which entitle him 
to the proceeds of his own labor. He becomes the head of 
a new family, and is no longer a member of the family of 
his parent. This being so, the parent is under no legal ob- 
ligation to support him. Thompson v. Georgia Ry. & P. 
Co., 163 Ga. 598, 604, 136 S. E. 895. 

[82] 



CHAPTER 3 
Of Guardian and Ward 



ARTICLE 1 

Their Appointment, Powers, Duties, Liabilities, 
Settlements, Resignation, etc. 

§ 3047. (§ 2528.) Bond and oath. 

As to suit on guardian's bond in ward's name, see note 
under section 3054. 

§ 3054. (§ 2535.) Suit on guardian's bond. 

Suit by Ward in Own Name. — Although the statutory 
bond required of a guardian under section 3047 is payable 
to the ordinary, suit thereon may be maintained by the 
ward in his own name after becoming of age, and need not 
be maintained by the ordinary suing for the use of the 
ward. Sheppard v. Clark, 35 Ga. App. 503, 134 S. E- 125. 

Guardian Need Not Be Joined. — It is not mandatory, 
under this section, that the guardian be sued in the same 
action with the surety. It is merely permissible. Shep- 
pard v. Clark, 162 Ga. 143, 132 S. E. 755. 

Petition in Action against Guardian and Sureties. — In a 
suit against the guardian and his surety, it is not necessary 
to allege that the plaintiff has obtained a judgment against 
the guardian in his representative capacity, in order to show 
a cause of action against the surety. American Surety Co. 
v. Macon Savings Bank, 162 Ga. 143, 132 S. E. 636. In 
this case the history of this section and section 3974, in re- 
gard to suits upon administrator's bonds, is reviewed and 
the two sections are held to be analogous. — Ed. Note. 

Petition in Action against Sureties Alone. — In a suit 
against the sureties upon a guardian's bond by the ward 
after becoming of age, where the guardian was not made a 
party defendant, the petition, which recited that a personal 
judgment had been obtained against the guardian in a suit 
by the ward and which recited a return of nulla bona upon 
an execution issued thereon and that the execution had not 
oeen paid, set out a cause of action and was not subject to 
general demurrer, nor to special demurrer upon the ground 
of non-joinder of parties. Sheppard v. Clark, 35 Ga. App. 
503, 134 S. E. 125. 

Same — Amendment. — In a suit upon a guardian's bond 
against the sureties on it, the guardian not being joined as 
a party defendant either in his representative capacity or 
in his individual capacity, the petition is subject to amend- 
ment by alleging judgments rendered against the guardian 
in his representative capacity and in his individual capacity. 
Sheppard v. Clark, 162 Ga. 143, 132 S. E. 755. 



ARTICLE 2 
Master's Liability to Servant 
§ 3129. (§ 2610.) Injuries to coemployees. 

Definition of Fellow Servants. — In determining whether 
certain servants are fellow servants it is necessary to decide 
whether the servants, the nature of their duties being con- 
sidered, were "about the same business," or were "engaged 
in the common pursuit," — a phrase which is occasionally 
found in the decisions, which means the same thing as being 
"about the same business." Holliday v. Merchants, etc., 
Transp. Co., 161 Ga. 949, 953, 132 S. E. 210. 

Same — Editor's Note. — See in Holliday v. Merchants & 
Miners Transp. Co., 161 Ga. 949, 132 S. E. 210, following the 
statement made under this catchline in the Georgia Code 
of 1926. 

§ 3130. (§ 2611.) Duty of master. 

IV. DUTY TO PROVIDE SAFE PLACE TO WORK. 
A. In General. 

Degree of Care. — It is the master's duty to exercise ordi- 
nary and reasonable care to furnish the servant with a safe 
place to work, under this and the following section. White- 
hurst v. Standard Oil Co., 8 Fed. (2d), 728. 

C. Application of Rule. 

1. In General. 

Places to Which Rule Relates. — See Flippin v. Central 

etc., Ry. Co., 35 Ga. App. 243, 132 S. E. 918, affirming the 

statement made under this catchline in the Georgia Code 

nf 1926. 



§ 3131 



WORKMEN'S COMPENSATION ACT 



§ 3154(2) 



VI. DUTY IN REGARD TO INSPECTION AND 
REPAIR 
When a Question for Jury. — In servant's action for in- 
juries from ladder's breaking, whether in exercise of reason- 
able care in making- inspection defendant would not have 
ascertained that rung of ladder was decayed was for the 
jury, although the ladder had been recently painted, con- 
cealing the defect; it not appearing that examination be- 
fore the ladder was painted would not have disclosed the 
defect. Whitehurst v. Standard Oil Co., 8 Fed. (2d), 728. 

§ 3131. (§ 2612.) Duty of servant. 

II. ASSUMPTION OF RISKS BY SERVANTS. 
B. Risks Ordinarily Incidental to Service. 

1. In General. 

Where a servant has equal means with his master of 
•knowing of the defect or danger which brought about his 
Injury, this is an assumed risk. Threlkeld v. Anthony, 36 
■Ga. App. 227, 136 S. F. 285. 

III. ACTIONS FOR INJURIES TO SERVANTS. 

A. In General. 

Burden of Proof. — The burden is on the plaintiff to show 
not only negligence on the part of the master, but due care 
on his own part; and it must appear that the plaintiff did 
not know, and had not equal means of knowing, all that 
which is charged as negligence, and that by the exercise of 
ordinary care he could not have known thereof. Flippin v. 
Central, etc., Ry. Co., 35 Ga. App. 243, 132 S. F. 918. 



ARTICLE 4 
Child Labor Regulated 



§ 3149(1). Employment of children under 14 
in mills, etc., prohibited. 

Provision in Insurance Policy. — A provision in an em- 
ployer's liability policy of insurance to the effect that the 
policy shall not apply to injuries sustained by any person 
employed by the insured "in violation of law as to age, or 
under the age of fourteen years if there is no legal age 
limit," contemplates a violation of this section. Savannah 
Kaolin Co. v. Travelers Ins. Co., 35 Ga. App. 24, 131 S. F- 
919. 

It does not contemplate merely a criminal violation of the 
act, which occurs only where the employer knowingly em- 
ploys a person under the prohibited age. Savannah 
Kaolin Co. v. Travelers Ins. Co., 35 Ga. App. 24, 131 S. F- 
•919. 



ARTICLE 6 
Workmen's Compensation Act. 

§ 3154(1). Titles. 

Purpose of the Act.— In Goelitz v. Industrial Board, 278 
111. 164, 115 N. F. 855, the Supreme Court of Illinois said: 
^'The fundamental basis of workmen's compensation laws 
is that there is a large element of public interest in 
accidents ^occurring from modern industrial conditions, and 
that the economic loss caused by such accidents should not 
necessarily rest upon the public, but that the industry in 
which an accident occurred shall pay, in the first instance, 
for the accident." Globe Indemnity Co. v. Lankford, 35 Ga. 
App. 599, 603, 134 S. E. 357. 

§ 3154(2). Definition of terms; compensation 
on basis of wage. 

Policeman of County. — The term "employee," in this sec- 
tion does not apply to a county policeman elected or 
appointed by the county, since it is not the relation of em- 
ployer and employee which exists between a county and 
such a county policeman, but such a county policeman is a 
public officer. Goss v. Gordon County, 35 Ga. App. 325, 133 
S. F. 68. See also section 3154(8) and annotations thereto. 

County Treasurer and Clerk of Board of Roads. — Where 
the treasurer" of a certain county became ex-officio clerk 
of the board of roads and revenues of that county, he was 
beld to be an officer and not an employee within the meaning 
of this act. U. S. Fidelity Guaranty Co. v. Watts, 35 Ga. 
App. 447, 133 S'. F. 476. 

II. ACCIDENT IN EMPLOYMENT. 

See annotations to section 3154(14), as to what constitutes 
injuries arising "out of the employment." 



When Injury Arises in Course of Employment. — An injury 
is received "in the course of" the employment when it 
comes while the workman is doing the duty which he is 
employed to perform. It "arises out of" the employment, 
when there is apparent to the rational mind, upon considera- 
tion of all the circumstances, a causal connection between 
the conditions under which the work is required to be per- 
formed and the resulting injury. The causative danger 
must be peculiar to the work and not common to the neigh- 
borhood. It must be incidental to the character of the 
business and not independent of the relation of the master 
and servant. It need not have been foreseen or expected, 
but after the event it must appear to have had its origin in 
a risk connected with the employment, and to have flowed 
from that source as a rational consequence. Georgia Rail- 
way, etc., Co. v. Clore, 34 Ga. App. 409, 410, 129 S. F. 779. 

An Accident Arises "Out of" the Employment. — See 
Maryland Casualty Co. v. Peek, 36 Ga. App. -557, 559, 127 
S. F. 121, citing and following the statement under this 
catchline in the Georgia Code of 1926. 

Necessity of Concurrence. — See Refining Co. v. Sheffield, 
162 Ga. 656, 134 S. F. 761, citing and following the paragraphs 
set out under this catchline in the Georgia Code of 1926. 

Violation of Rule Not Approved by Commission. — An act 
done in violation of the rule against the use of the elevator 
by employees is not necessarily one out of the scope of the 
employment, to the extent of excluding the master and 
servant relation; and, where there is nothing to show that 
the rule had been approved by the industrial commission, its 
violation would not bar compensation. American, etc., Ins. 
Co. v. Hardy, 36 Ga. App. 487, 491, 137 S. F- 113. 

Temporary Suspension of Employment. — Where a mem- 
ber of a crew on a vessel then lying at the docks, a part of 
the terminals of the defendant, obtained shore-leave and, 
after two hours spent ashore returned to the terminals and 
demanded entrance at a gate, even if the relationship of 
master and servant existing between the member of the 
crew and the transportation company had been suspended 
that relationship came immediately into existence again as 
soon as the servant returned to the gate and demanded ad- 
mittance. Holliday v. Merchants, etc., Transp. Co., 161 
Ga. 949, 132 S. F. 210. 

Replacing Belts at Ginnery. — An injury received in replac- 
ing the belts at a ginnery, from which they had been bor- 
rowed for use in the sawmill of the lumber company, arose 
"out of and in the course of" the injured person's em- 
ployment with that company. Zurich General Accident, etc., 
Co. v Ellington, 34 Ga. App. 490, 130 S. F- 220. 

'Evidence. — In Norwick Union Indemnity Co. v. Johnson, 
36 Ga. App. 186, 136 S. F- 335, it was held that the evidence 
did not authorize the finding that injury arose out of and in 
the cause of employment. Conversely, in Accident Corp. v. 
Martin, 35 Ga. App. 504, 134 S. F. 174; Guarantee Corp. v. 
Wallace, 35 Ga. App. 571, 134 S. F- 334, and American, etc., 
Ins. Co. v. Hardy, 36 Ga. App. 487, 137 S. F- 113. It 
was held that the evidence authorized the finding that in- 
jury did arise out of and in the cause of the employment. 

Findings of Fact Conclusive. — It is not enough for the com- 
mission to state, merely as a conclusion, in the language of 
the statute, that the injury is found to have arisen out of 
and in the course of the employment. This does not mean, 
however, that it is improper for the commission to give 
its conclusion in the language of the statute, where the 
findings of fact as stated are sufficient to justify such con- 
clusion. What the court meant in Southeastern Express 
Co. v. Fdmondson, 30 Ga. App. 697, 119 S. F. 39, was that 
a mere statement that the commission finds that the in- 
jury arose out of and in the course of the employment is 
not such a finding of fact as would justify an award, when 
it stands unsupported by any other findings of fact to 
justify it as a conclusion. American, etc., Ins. Co. v. 
Hardy, 36 Ga. App. 487, 490, 137 S. F- 113. 

III. DISEASE ARISING FROM ACCIDENT. 
When Disease Results Naturally and Unavoidably. — See 

Casualty Co. v. Smith, 34 Ga. App. 363, 374, 129 S. F. 880, 
quoting and following the paragraph set out under this 
catchline in the Georgia Code of 1926. 

Statements after Occurrence of Injury. — The statements 
of the emoloyee tending to show that he had suffered an 
injury and that the injury resulted in hernia, having been 
made some time after the alleged injury, and being merely 
narrative and descriptive of something which had fully taken 
nlace and become a thing of the past, had no probative 
value in establishing the fact that he was injured. Bolton 
v. Columbia Casualty Co., 34 Ga. App. 658, 130 S. F. o35. 

IV. WILFUL INJURY BY THIRD PERSON. 
Assaults for Reasons Not Personal to Employee. — Where 
one in the discharge of his duties, is required to travel upon 



[83] 



§ 3154(4) 



WORKMEN'S COMPENSATION ACT 



§ 3154(50) 



a train, his exposure to an unprovoked assault by a pas- 
senger, who jumps up from his seat and begins shooting at 
the passengers, is not a risk incident to the employment, 
and the death of the employee as a result of such an assault 
is not an injury which arises out of the employment, and 
therefore is not compensable. Maryland Casualty Co. v. 
Peek, 36 Ga. App. 557, 137 S. F. 121. 

V. COMPENSATION FROM EMPLOYER AND THIRD 
PERSON— SUBROGATION. 

Applied. — For the application of the provision as to sub- 
rogation, see Western Atlantic Railroad v. Henderson, 35 
Ga. App. 363, 133 S'. F. 645. 

§ 3154(4). Exemption; notices to reject. 

As to presumption where there are less number of em- 
ployees than ten, see note to section 3154(15). 

§ 3154(7). Relief from obligations. 

See annotations to section 3154(45). 

Employee Not Precluded Notwithstanding Agreement. — 

An employee can not be deprived of the compensation to 
which he is entitled thereunder by any agreement between 
himself and his employer, notwithstanding its approval by 
the industrial commission. Globe Indemnity Co. v. Lank- 
ford, 35 Ga. App. 599, 600, 134 S. F- 357. 

§ 3154(8). Provisions not applicable to public 
employees. 

Policeman as Employee — Insurance Expressly Covering 
Lien. — Although a city policeman may not be an "em- 
ployee" within the meaning of that term as used in this act, 
yet where an insurance company insures a city under the 
workmen's compensation act and the policy expressly covers 
policemen employed by the city and the salaries of the 
policemen are taken into consideration in fixing the pre- 
mium, the policemen, in so far as the insurance company is 
concerned, are employees of the city and entitled to com- 
pensation under the policy. Frankfort General Ins. Co. v. 
Conduitt, 74 Ind. App. 584 (127 N. F. 212); Kennedy v. 
Kennedy Mfg. Co., 177 App. Div. 56 (163 N. Y. Supp. 944); 
Maryland Casualty' Co. v. Wells, 35 Ga. App. 759, 134 S. F. 
788. See notes to section 3154(2). 

§ 3154(15). Common carriers. 

Presumption of Operating under This Act. — There is no 
presumption that an employer and an employee are oper- 
ating under the provisions of the workmen's compensation 
act where it does not appear that the employer regularly 
had in service as many as ten employees in the same busi- 
ness within this State. Bussell v. Dannenberg Co., 34 Ga. 
App. 792, 132 S. F. 230. 

§ 3154(16). Action against exempted employer. 

Applied in Fulton Bakery Incorporated v. Williams, 35 
Ga. App. 681, 134 S. F. 621. 

§ 3154(20). Contractor, when liable; recovery. 

Employees of Independent Contractor. — See Zurich Gen- 
eral Accident, etc., Ins. Co. v. Lee, 36 Ga. App. 248, 136 S. 
F. 173, citing and following the paragraph set out under this 
catchline in the Georgia Code of 1926. 

Relation at the Time of Injury Governs. — Whatever may 
have been the previous relation of the deceased employee to 
the defendant, where the evidence authorizes the finding 
that at the time of the accident which resulted in his death 
he was an employee of the defendant, and not the employee 
of an independent contractor, the authorized finding of the 
industrial commission upon this issue can not be disturbed. 
See, in this connection, Ocean Accident, etc., Corp. v. 
Council, 35 Ga. App. 632, 134 S. F. 331; Ocean Accident & 
Guarantee Corp. v. Wilson, 36 Ga. App. 784, 138 S. F. 246. 

Institution of Claim against Immediate Employer Pre- 
requisite. — Whatever may be the state of evidence as to the 
existence of the relation of master and servant between the 
defendant and the plaintiff, where that part of this section 
which provides that every claim for compensation under this 
section shall be in the first instance presented to and insti- 
tuted against the immediate employer, has not been complied 
with, no recovery can be had against the principal em- 
ployer who is not the immediate employer. Zurich General 
Accident, etc., Ins. Co. v. Lee, 36 Ga. App. 248, 136 S. F- 173. 

§ 3154(23). Notice of accident or injury by em- 
ployee. 

Notice to Immediate Superior. — The evidence authorized 
the inference that the representative of the injured em- 
ployee immediately gave notice of the injury to the im- 



mediate superior of the injured employee, and therefore a 
written notice to the employer was not necessary. Ocean 
Accident, etc., Corp. v. Martin, 35 Ga. App. 504, 134 S. E- 
174. 

§ 3154(27). Liability for medical attention 
limited. 

No Liability over One Hundred Dollars. — Under the pro- 
visions of this section the Industrial Commission has no au- 
thority to award more than the limit prescribed by 
this section where the insurance carrier made no agreement 
that it would be liable for more than the statutory amount. 
Lumbermen's Mutual Casualty Co. v. Chandler, 162 Ga. 
244, 133 S. F. 237; Lumbermen's Mutual Casualty Co. v. 
Chandler, 35 Ga. App. 464, 134 S. F. 122. 

§ 3154(34). Injuries not specified in section 
3154(32). 

Rate of Compensation for Injury to Already Injured Part. 

—Where an employee who in childhood had lost a foot and 
a part of one leg to within three inches of the knee, suffered 
a compensable injury to the remaining portion of his leg, 
as a result of which he sustained a 50 per cent, loss of the 
use of that portion, he was entitled to compensation for such 
partial loss of use at the rate of 50 per cent, of the amount 
which he should have received for the loss of a leg or for 
the loss of use of a leg, irrespective of the previous dis- 
ability or injury. American Mutual Liability Ins. Co. v. 
Brock, 35 Ga. App. 772, 135 S. F. 103. 

§ 3154(39). List of dependents; termination of 
dependence. 

Conclusive Presumption as to Dependency of Child under 
18 — Construction of Stepfather Clause. — Under this section 
a child under eighteen years of age is conclusively presumed 
to be wholly dependent on the parent, and is therefore en- 
citied to compensation for the homicide of the parent in ac- 
cordance with the provisions of the statute. The clause of 
the act providing that the term "child" as thus used shall 
include "stepchild" and that the term "parent" shall include 
"step-parents" ; s to be liberally construed as enlarging the 
sphere of conclusive dependency in favor of such a child, 
so as to include a right which would not otherwise* con- 
clusively exist. The provision is not to be construed as 
intended to exclude by unnecessary implication a plainly 
established claim for the homicide of an actual parent. 
Travelers Ins. Co. v. Williamson, 35 Ga. App. 214, 132 S. E. 
265. 

A child under eighteen is conclusively presumed to be de- 
pendent upon his father. Hence if his mother is divorced 
and marries another man who becomes his stepfather, this 
section establishes a principle of double dependency, and the 
stepfather clause of trie section does not preclude him from 
recovering for the homicide of his actual father. Travelers 
Ins. Co. v. Williamson, 35 Ga. App. 214, 220, 132 S. F. 265. 

Finding as to Desertion Conclusive When Supported by 
Any Evidence. — The findings of the industrial commission 
on questions of fact, which would include any issue upon 
the question of voluntary desertion by a claimant wife, if 
supported by any evidence, are conclusive. United States 
Casualty Co. v. Matthews, 35 Ga. App. 526, 133 S. F. 875; 
Maryland Casualty Co. v. England, 160 Ga. 810, 812, 129 S. 
F. 75; Ocean Accident & Guaranty Corp. v. Council, 35 Ga. 
App. 632, 134 S. F. 331. 

Admission of Desertion Amounting to Conclusion of Law. 
— The finding: of the commissioner before whom the case 
was originally tried, that the claimant was not entitled to- 
compensation on account of her admission "that she had vol- 
untarily left her husband," was a conclusion of law, based 
upon her own testimony; and hence reversible. Ocean Ac- 
cident & Guaranty Corp. v. Council, 35 Ga. App. 632, 134 
S. F. 331. 

§ 3154(45). Review of awards. 

See annotations to section 3154(58). 

Waiver of Right by Contract. — See Globe Indemnity Com- 
pany v. Lankford, 35 Ga. App. 599, 134 S. F. 357, citing and 
following the paragraph set out under this catchline in 
Georgia Code of 1926. See notes of this case under section 
3154(50). 

§ 3154(50). Industrial Commission created. 

Administrative Body — Jurisdiction. — The Industrial Com- 
mission is not a court of general jurisdiction, nor even of 
limited common law jurisdiction,- but it is an industrial 
commission, made so by express terms of the act of the leg- 
islature to administer its provisions as provided therein; 
as such administrative commission it possesses only such 



[84] 



§ 3154(55) 



RIGHTS AND LIABILITIES OF PARTNERS 



§ 3176 



jurisdiction, powers, and authority as are conferred upon it 
by the legislature, or such as arise therefrom by necessai']- 
implication to carry out the full and complete exercise of 
the powers srranted. Gravitt v. Ga. Casualty Co., 158 Ga. 
613, 123 S. E. 897; Globe Indemnity Co. v. Lankford, 35 
Ga. App. 599, 601, 134 S. E. 357. 

§ 3154(55). Agreements. 

Finality of Award upon the Agreement of Parties. — 

Where the employer and the claimant reach an agreement 
in regard to compensation, and a memorandum of the agree- 
ment is filed with, and approved by, the industrial com- 
mission, and thereupon the commission makes an award to 
the claimant, and notice of the award is given to the in- 
terested parties, the award is final and cannot be set aside, 
diminished, or increased, unless the parties disagree as to 
the continuance of any weekly payment under the agree- 
ment. Lattimore v. Lumbermen's Mutual Casualty Co., 35 
Ga. App. 250, 133 S. E- 291. 

§ 3154(57). Conduct of hearings. 

Award Directed against Both Employer and Insurer. — 

The award of the industrial commission should be directed 
against both the employer and the insurance carrier instead 
of against the insurance carrier only. Hartford Accident, 
etc., Co. v. Hall, 36 Ga. App. 574, 576, 137 S. E. 415. 

§ 3154(58). Review. 

Discretion of Commission as to Rule 26. — Rule 26 of the 
industrial commission, laying down the conditions upon 
which the full commission will hear evidence on review, is 
to be enforced or relaxed in the discretion of the commission, 
without interference by the courts. American, etc., Ins. Co. 
v. Hardy, 36 Ga. App. 487, 137 S. E. 113. 

§ 3154(59). Appeals to Superior Court; writ of 
error. 

Exception Must Point out Error. — An exception on appeal 
from an award of the industrial committee, on the ground oi 
insufficiency of evidence must point out the particular evi- 
dence objected to on the ground of objections. Maryland 
Casualty Co. v. Wells, 35 Ga. App. 759, 134 S. E- 788. 

Raising New Point on Appeal. — See Fidelity Co. v. 
Christian, 35 Ga. App. 326, 133 S. E- 639, and Ocean Accident, 
etc., Corp. v. Martin, 35 Ga. App. 504, 134 S. E- 174, citing 
and following the statement made under this catchline in 
the Georgia Code of 1926. 

Findings of Fact Conclusive. — See Ins. Co. v. Hamilton, 35 
Ga. App. 182, 132 S. E- 240. Fidelity Co. v. Christian, 35 Ga. 
App. 326, 133 S. E. 639; Maryland Casualty Co. v. Miller, 36 
Ga. App. 631, 137 S. E- 788, following the statement made 
under this catchline in the Georgia Code of 1926. 

But the judgment of the superior court affirming the 
award of the industrial commission in a case where the evi- 
dence fails to show that the death of the deceased arose out 
of and in the course of his employment, will be reversed 
upon appeal to the court of appeals. Georgia Casualty Co. 
v. Kilburn, 36 Ga. App. 761, 138 S. E. 257. 

Sufficiency of Evidence Equivalent to Verdict, etc. — See 
Fidelity Co. v. Christian, 35 Ga. App. 326, 133 S. E- 639, 
following the statement made under this catchline in the 
Georgia Code of 1926. 

Correct Order Not Affected by Erroneous Finding as to 
Notice. — Where the order of the commission denying com- 
pensation is not erroneous upon a given ground and was not 
affected by an erroneous finding as to lack of notice, it will 
be sustained irrespective of any error affecting a finding 
that there was a lack of notice. Maryland Casualty Co. 
v. England, 34 Ga. App. 354, 129 S. E- 446. 

Court Authorised to Enter Proper Judgment. — On the 
appeal of the claimant from an award made on an erroneous 
basis the superior court is authorized to enter the proper 
final judgment upon the findings as made. American, etc., 
Ins. Co. v. Brock, 35 Ga. App. 772, 135 S. E- 103. 



FOURTH TITLE 
Of Relations Arising from Other Contracts 



CHAPTER l 
Of Partnerships 



ARTICLE 1 
General Principals 

§ 3155. (§ 2626.) How Created. 

This Section Not Exhaustive. — As between themselves. 



"the intent of the parties is the true test of a partnership, 
which may be created by a contract giving rights or im- 
posing liabilities differing from those from which the law 
ordinarily infers a partnership." Allgood v. Feckoury, 36 Ga. 
App. 42, 43, 135 S. E. 314, citing Huggins v. Huggins, 117 
Ga. 151, 43 S. E- 759. 

§ 3158. (§ 2629.) What constitutes a partner- 
ship. 

In General. — Whenever a joint enterprise, a joint risk, a 
joint sharing of expenses, and a joint interest in the profits 
and losses concur, a partnership exists. Smith v. Hancock, 
163 Ga. 222, 231, 136 S. E. 52. 

Joint and Common Interest Distinguished. — A joint in- 
terest in partnership property is another and a very distinct 
thing from a common interest in the profits alone. The 
former interest is that of an owner, who has a right to dis- 
pose of the profits, and that makes him a partner; but a 
common interest in the profits confers no title jointly with 
the other and gives no power to control and dispose of the 
profits as owner. Smith v. Hancock, 163 Ga. 222, 231, 136 
S. E- 52. 

No partnership was created by an agreement that the 
plaintiff should conduct in the defendant's name a store 
which was to be owned and supplied with goods by the de- 
fendant, and should receive an equal share of the net profits. 
Allgood v. Feckoury, 36 Ga. App. 42, 135 S. E. 314. For a 
case where the contract between the parties was held to 
constitute a partnership, see Smith v. Hancock, 163 Ga. 222, 
136 S. E. 52. See also Barrow v. Georgia Chemical Works, 
34 Ga. App. 31. 128 S'. E- 14; Nellis & Co. v. Green, 36 Ga. 
App. 684, 137 S. E- 843. 

§ 3164. (§ 2635.) Effect of dissolution. 

Notice to Creditor. — The fact that a creditor may have 
had no sufficient notice of the dissolution of the partnership 
does not affect the actual right of one of the erstwhile mem- 
bers to contract on behalf of the partnership. Citizens Nat. 
Bank v. Jennings, 35 Ga. App. 553, 555, 134 S. E- 114. 

§ 3166. (§ 2637.) Denial by defendant. 

Sufficiency of Denial. — A plea of no partnership in which 
it was set up that at the time of the execution of a note 
there was in fact no such partnership, for the reason that 
the partnership had a short time before been dissolved, is 
demurrable where it fails to allege that notice of such dis- 
solution had been given as required by law, or that both the 
original payee and the present holder of the note, at the 
time of the accrual of their respective rights in it, had ac- 
tual knowledge of such dissolution. Cooke v. Faucett, 35 
Ga. App. 209, 132 S. E. 268. 



ARTICLE 2 

Rights and Liabilities of Partners among 

Themselves 

§ 3172. (§ 2643.) Power of each partner. 

Negotiable Paper. — One of the defenses which may be 
maintained against the suit of a bona fide holder upon a 
negotiable instrument is a plea of non est factum. But "if 
a partnership, under any circumstances, has the implied 
right and power to execute notes, one to whom they are 
offered in the market has a right to presume that they were 
issued under the circumstances which gave the requisite 
authority." 8 Corpus Juris, 522. Cooke v. Faucett, 35 Ga. 
App. 209, 132 S. E- 268. 

§ 3176. (§ 2647.) Surviving partner. 

Statute of Limitations. — After the dissolution of a partner- 
ship by death of one of the partners, the statute of limita- 
tions does not commence to run in favor of the surviving 
partner against the estate of the deceased partner as long 
as there are debts due by the partnership to be paid, or debts 
due it to be collected, or until a sufficient time has elapsed 
since the dissolution of the firm to raise the presumption 
that all debts due from the partnership have been paid, and 
that all debts due to it have been collected. Purvis v. John- 
son, 163 Ga. 698, 137 S. E. 50. 

It will be presumed that, before the expiration of a period 
of nine years, all debts due by the firm had been paid and 
those due to the firm had been collected; and tolling from 
the statute of limitations the five years allowed for the 
taking out of administration upon the estate of the deceased 
partner, the suit as to an accounting for the personal assets 
of the partnership, which was not brought within four years 
of the expiration of the five-year period, was barred. Purvis 
v. Johnson, 163 Ga. 698, 137 S. E- 50. 



[85] 



§ 3188 



ACTS VOID AS AGAINST CREDITORS 



§ 3226 



ARTICLE 3 

Rights and Liabilities of Partners to Third 
Persons 

§ 3188. (§ 2659.) Power after dissolution. 

See under section 3164 note "Notice to Creditor." 



CHAPTER 2 
Debtor and Creditor 



ARTICLE 1 
General Principles 



SECTION 1 
Relation Defined, etc. 
§ 3217. (§ 2688.) Equitable assets. 

Insurance Policy. — The cash surrender and cash loan value 
of a policy of life insurance accruing - at the end of a specified 
tontine period is not subject to garnishment by creditors of 
the insured; nor will such value be made available to the 
judgment creditor of the insured by a court of equity in pro- 
ceedings instituted for the purpose of obtaining equitable 
relief analogous to a process of garnishment at law. Farm- 
ers, etc.. Bank v. National Life Ins. Co., 161 Ga. 793, 131 S. 
E- 902. 



SECTION 2 

Statute of Frauds 

§ 3222. (§ 2693.) Obligations which must be 
in writing. 

Statute Makes Contract Unenforceable Merely. — A parol 
contract unenforceable by reason of the statute of frauds 
is nevertheless a valid, subsisting contract as between per- 
sons other than the contracting parties, for purposes other 
than a recovery upon it. Waynesboro Planing Mill v. Per- 
kins Mfg. Co., 35 Ga. App. 767, 134 S. E- 831. And therefore 
the fact that a contract may be required by the statute of 
frauds to be in writing will not preclude the establishment 
of its contents by parol, where it has not in fact been re- 
duced to writing. Id. 

Presumption That Contract Is Written. — See Beasley v. 
Howard, 34 Ga. App. 102, 128 S. E. 203, citing Riser Com- 
pany v. Padrick, 30 Ga. App. 642, 118 S. E- 791. Bank v. 
IvOvvorn Grocery Co., 34 Ga. App. 772, 131 S. E- 301, citing 
Ansley v. Hightower, 120 Ga. 719, 48 S. E- 197, following 
statement made under this catchline in Georgia Code of 1926. 

Promise Not within Provision—Promise to Pay Physician. 
— Where a physician renders professional services to a minor 
child of a tenant, solely upon the credit of the landlord's 
promise to pay for such services, the promise is an original 
and not a collateral undertaking, and is not within the stat- 
ute of frauds. Pope v. Ellis, 34 Ga. App. 185, 129 S. E- 1J. 

Same — Agreement to Collect or "Guarantee" Loan. — Neither 
an agent's promise to collect a loan nor an agreement, as a 
part of a contract of agency, to "guarantee" it, constitutes 
a promise to answer for the debt, default, or miscarriage 
of another, and the statute of frauds is not applicable. Ben- 
ton v. Roberts, 35 Ga. App. 749, 134 S. E. 846. 

Contract Partly in Writing. — A contract for the sale of 
land, which is partly in writing and partly in parol, is not 
enforceable, by reason of the statute of frauds. Thompson 
v. Colonial Trust Co., 35 Ga. App. 12, 131 S. E- 921. 

Contract for Resale of Land. — A contract to resell land 
to the original seller is a contract for the sale of land which 
comes under the statute of frauds. Amerson v. Cox, 35 
Ga. App. 83, 132 S. E. 105. 

Optional Contract Included. — An option to purchase rented 
premises is a contract required by the statute of frauds 
to be in writing by this section. Robinson v. Odom, 35 Ga. 
App. 262, 133 S. E- 53. See also Rennington v. Small, 36 
Ga. App. 176, 136 S. E- 326. 

Joint Adventure in, Lands Not within Section. — An 
agreement to enter a joint adventure for the purpose of deal- 
ing in lands into which one is to put property and another 
his service, and which does not contemplate a transfer of 
title is not within the statute, notwithstanding it may be 
intended that as an incident of the enterprise one of the 



parties may take title to lands for the benefit of both. 
Manget v. Cariton, 34 Ga. App. 556, 130 S. E. 604. 
Contract of Resale. — See Singer Company v. Gray & Son,. 

34 Ga, App. 345, 129 S. E- 555, following the principle stated 
under this catchline in the Georgia Code of 1926. 

Sufficiency of Writing Letters Acknowledging Terms. — 
See Edison v. Plant Bros. & Co., 35 Ga. App. 683, 134 S. 
E- 627, following the principle stated under this catchline 
in the Georgia Code of 1926. 

Correspondence between opposing counsel was properly 
admitted as tending to prove the existence of the contract 
sued on and that such contracts Mere consequently not 
within the statute. Garrard v. Oil Co., 35 Ga. App. 137,. 
132 S. E. 234. 

Stated in Beasely v. Howard, 34 Ga. App. 102, 128 S. E- 
203. 

§ 3223. (§ 2694.) Exceptions. 

Agreement Not to Levy on Crop. — An oral agreement,, 
based on a consideration, not to levy on a crop is enforce- 
able where there has been performance and acceptance. Arm- 
strong v. Reynolds, 36 Ga. App. 594, 137 S. E. 637. 

When Whole Performance Necessary to Prevent Fraud.— 
See Bank v. Winter Inc., 161 Ga. 898, 905, 132 S. E- 422, 
following the principle stated under this catchline in the 
Georgia Code of 1926. 

Contracts for the Sale of Goods, etc. — Performance by a 
creditor making delivery, and acceptance by the debtor of 
such delivery, of goods in accordance with the terms of an 
oral contract will take the same without the statute. Paf- 
ford v. Hinson & Co., 34 Ga. App. 73, 128 S. E. 207. 

Fruit Packed and Shipped. — See Nellis & Co. v. Houser, 

35 Ga. App. 33, 132 S. E. 142, following the principle stated 
under this catchline in the Georgia Code of 1926. 

Goods Specially Made. — The special manufacturing of 
goods done in compliance with the intent and purpose of the 
order, and within the time specified, amounts to such part 
performance of the contract on the part of the vendor as 
would render it a fraud on the part of the vendee to refuse 
acceptance. Edison v. Plant Bros. & Co., 35 Ga. App. 683 y 
134 S. E. 627. 

Applied in Rennington v. Small, 36 Ga. App. 176, 136 S. 
E. 326. 

§ 3224. (§ 2695.) Void acts. 

III. CHARACTER OF TRANSACTION AND BADGES 
OF FRAUD. 

Conveyance to Oneself as Trustee. — The making of a deed 
by a person as an individual to himself in his representative 
capacity, the deed being for land in which he has a contin- 
gent remainder, is, on insolvency, sufficient evidence on 
which to base a verdict that the deed was executed with the 
intent to hinder and delay collection of the grantor's other 
debts. Eberhardt v. Bennett, 163 Ga. 796, 806, 137 S. E- 64. 

Evidences of Fraud. — "Failure to produce testimony is a 
badge of fraud, where the bona fides of the transaction is 
in issue, and witnesses who ought to be able to explain it 
are in reach." Eberhardt v. Bennett, 163 Ga. 796, 806, 137 
S. E- 64. 

Same — Disposing of Entire Property. — See Eberhardt v. 
Bennett, 163 Ga. 796, 806, 137 S. E. 64, citing and following 
the statement in the first paragraph under this catchline 
in the Georgia Code of 1926. 



ARTICLE 2 
Acts Void as against Creditors 
§ 3226. Merchandise, how sold in bulk. 

I. GENERAL CONSIDERATION. 

Purpose of Sections. — This section is for protection of then 
existing creditors, who are to be notified, and in absence of 
fraud such sale cannot be attacked by subsequent credi- 
tors for noncompliance with this act. Dodd v. Raines, 1 
Fed. (2d), 658. 

Sufficiency of Presumption of Fraud to Avoid Transfer in 
Bankruptcy. — To entitle a trustee to recover property as 
transferred by bankrupt within four months with intent 
to defraud creditors, under Bankruptcy Act, section 67e 
(Comp. St. section 9651), there must be proof of actual in- 
tent to defraud, and a presumption of fraud raised by this 
statute is not sufficient. Dodd v. Raines, 1 Fed. (2d). 658. 

II. APPLICATION OF SECTION. 

No Distinction between Creditor. — This section draws no 
distinction between those creditors whose debts may have 
arisen from sales of merchandise and such creditors as 



[86] 



§ 3230 



SALES TO SECURE DEBTS 



§ 3306 



sustain that relation by reason of indebtedness created by 
the debtor for other independent and disassociated reasons. 
It applies as well to a sale of a stock of goods in bulk by a 
debtor to a creditor in extinguishment of his debt as to a 
sale for cash or on credit. Anderson v. Merchants, etc., 
Bank, 161 Ga. 12, 129 S. E. 650. 



CHAPTER 3 

Preferences and Assignments for Benefit of 
Creditors 

§ 3230. (§ 2697.) Legal preference. 

Methods of Preferring Creditors — Good Faith. — See Bank 
v. Ellison, 162 Ga. 657, 134 S. E- 751, citing and following the 
statement in the second paragraph under this catchline in 
the Georgia Code of 1926. 

Bankrupt Debtor. — A voluntary bankrupt having an assign- 
able interest in the property claimed by him in his petition 
as exempt under the constitution and homestead laws of this 
state can transfer this interest in good faith to his creditor 
either in extinguishment of, or to secure, a pre-existing 
debt, before the property is set aside by the trustee in 
bankruptcy, and before the same is confirmed by the bank- 
rupt court. Silver v. Chapman, 163 Ga. 604, 136 S. E- 914. 

When Right to Prefer Extinguished. — The right of the 
debtor to prefer one creditor to another in a bona fide trans- 
action continues up to the date when a judgment or lien is 
obtained against- him. The mere pendency of a suit does 
not extinguish that right to prefer. Bank v. Ellison, 162 
Ga. 657, 134 S. E- 751. 



CHAPTER 5 
Mortgages 



ARTICLE 1 
General Principles 



§ 3256. (§ 2723.) What is a mortgage, and 
what it may embrace. 

I. GENERAL CONSIDERATIONS. 

Distinguished from Security Deed. — A statutory mortgage 
in this State does not convey title, but only creates a lien 
on property. A statutory security deed conveys title to 
property as security, and is expressly declared to be "not a 
mortgage." The latter has been declared to be in effect an 
equitable mortgage, but vastly different rights arise from 
the effect of the two classes of security. Carmichael v. 
Citizens, etc., Bank, 162 Ga. 735, 134 S. E- 771; Bank v. 
Beard, 162 Ga. 446, 449, 134 S. E- 107. 

The objects of a mortgage and security deed and a bill of 
sale to personalty under the provisions of the Code are 
identical — security for debt. While recognizing the techni- 
cal difference between a mortgage and security deed and as 
hereinbefore pointed out, the court has treated deeds to se- 
cure debts and bills of sale to secure debts as equitable 
mortgages. Bank v. Beard, 162 Ga. 446, 449, 134 S. E- 107. 
See also Hill v. Smith, 163 Ga. 71, 135 S. E- 423. 

III. AFTER ACQUIRED INTEREST AND INCREASE. 

General Rule. — See Dunson Co. v. Cotton Mills, 34 Ga. 
App. 768, 131 S. E- 186, citing and following the statement 
in the last paragraph under this catchline in the Georgia 
Code of 1926. 

Same— Bill of Sale to Secure Debt.— The object of the 
statute was to devise a practical means to enable owners 
of such class of property to use it as a security. The stat- 
ute should be construed in this light; and when so con- 
strued, giving due effect to substance as compared to form, 
the provision as to after acquired property is sufficient to 
include bills of sale to secure debt, though not expressly 
named therein. Bank v. Beard, 162 Ga. 446, 449, 134 S. E. 
107. See note of this Case under § 3306. 

§ 3258. (§ 2725.) Reducing deed to mortgage. 

Possession — Effect of Possession in Vendor. — See Sims v. 
Sims, 162 Ga. 523, 527, 134 S. E- 308, citing and following 
the law as stated under this catchline in the Georgia Code 
of 1926. 

§ 3262. (§ 2729.) Defective record. 

See notes to § 3307. 



§ 3270. (§ 2737.) Cancellation of mortgage. 

Stated in Ellis v. Ellis, 161 Ga. 360, 362, 130 S. E- 681. 



ARTICLE 2 
Mortgages on Real Estate, How Enforced 



SECTION 1 

Application to Foreclose; When, Where, and 
How Made, and Proceedings Thereon 



(§ 2745.) Transferee may foreclose, 



§ 3278. 
how. 

Evidence Justifying Recovery. — In a suit upon a mortgage 
note, instituted by the payee for the use of an assignee, 
where it appears that the assignee is the holder of the legal 
title, the assignee is the real party at interest. Although 
the petition may not be amended by striking the name of 
the nominal party plaintiff and substituting therefor the 
name of the assignee as plaintiff, there may nevertheless be 
a recovery for the plaintiff upon evidence which sustains 
only the right of the assignee to recover, where such evi- 
dence has been admitted without objection. Carden v. Hall, 
34 Ga. App. 806, 131 S. E. 296. 



ARTICLE 3 

Of Mortgages on Personal Property, and Bills 
of Sale to Secure Debts, How Foreclosed 



SECTION 1 

Application to Foreclose, by Whom and 
How Made 

§ 3292. (§ 2759.) Mortgaged property, when 
sold without foreclosure. 

Estoppel to Deny Consent. — Where the holder of the sub- 
sequent mortgage failed to question the legal right of the 
other holder to intervene in a proceeding for distribution of 
process from a foreclosure without foreclosing her mort- 
gage, and where the jury found against the holder of the 
subsequent mortgage, and judgment was entered in favor 
of the other holder, the holder of the subsequent mortgage 
will not be heard to insist for the first time that it is illegal 
because the earlier mortgage had not been foreclosed and no 
equitable reason for claiming the fund derived from a sale 
under the subsequent mortgage was set out in the interven- 
tion. Bank v. Goolsby, 34 Ga. App. 217, 129 S. E. 8. 



SECTION 2 
Of Defenses, When and How Made 
§ 3301. (§ 2766.) Replevy bond. 

Failure to Give Proper Bond or Affidavit. — See Bridges v. 
Melton, 34 Ga. App. 480, 129 S. E. 913, citing and following 
the statements made under this catchline in the Georgia 
Code of 1926. 



CHAPTER 6 

Sales to Secure Debts 

§ 3306. (§ 2771.) Absolute deeds and not 
mortgages. 

I. GENERAL CONSIDERATIONS. 

Distinguished from Mortgage. — See notes to § 3256. 

Applies to Both Realty and Personalty.— A bill of sale of 
personalty to secure a debt stands on the same footing as a 
deed to realty to secure a debt. The status of each is pro- 
vided for in this section. Bank v. Beard, 162 Ga. 446, 448, 
134 S. E. 107. 

Attaches to After- Acquired Property. — Where a bill of sale 
on an ordinary stock of merchandise changing in specifics : s 
executed merely to secure a debt, the bill of sale will attach 
to after-acquired portions of the stock as in case of mort- 



[87] 



§ 3307 



LIENS OTHER THAN MORTGAGES 



§ 3333 



gages, whether or not the bill of sale makes express refer- 
ence to such after-acquired property. Bank v. Beard, 162 
Ga. 446, 134 S. E- 107. See note of this case under § 3256. 

II. DETERMINING WHETHER INSTRUMENT IS 

MORTGAGE OR DEED TO SECURE DEBT. 
Distinctions. — See notes to § 3256. 

IV. LIEN OF SECURITY DEED, FI. FA. AND 
PRIORITIES. 

Priorities.— See Bank v. Ins. Co., 163 Ga. 718. 721, 137 S. 
E. 53, following the statement made under this catchline in 
the Georgia Code of 1926. 

VI. TRANSFER OR ASSIGNMENTS. 
Rights of Transferee. — A transferee of the grantee named 
in the security deed occupies the position of such grantee as 
against the grantor and those claiming under him. Gilliard 
v. Johnston, 161 Ga. 17, 129 S. E- 434. 

§ 3307. (§ 2772.) Record of such deeds. 

Necessity for Record. — A "bill of sale" as contemplated by 
this section is a "deed" to personalty, and is included in the 
meaning of the word "deeds" as employed in section 3320; 
and consequently under that law bills of sale to secure debt 
are required to be recorded. Bank v. Beard, 162 Ga. 446, 451, 
134 S. E. 107. 

Defective Record. — Construing section 3262 with the section 
a defective record of security deed will be equivalent to no 
record, and, in the language of this section, it will "remain 
valid against the persons executing" it, but will be "post- 
poned to all liens created or obtained, or purchases made, 
prior to" a legal record of the security deed. Bank v. Ins. 
Co., 163 Ga. 718, 722, 137 S. E- 53. 

The words "liens created or obtained," as employed in 
the section, have been held to refer to liens arising by con- 
tract, and not by operation of law. Donovan v. Simmons, 
96 Ga. 340, 22 S. E- 966; Griff eth v. Posey. 98 Ga. 475, 25 
S. E. 515; Bank v. Beard, 162 Ga. 446, 450, 134 S. E- 107. 

Where Recorded. — A retention-of-title contract attested by 
a person described as a commercial notary public of L. 
county, although the caption of the instrument indicates 
that it was executed in a town in W. county is presumably 
officially executed in L. county. It nevertheless is legally 
executed to record in W. county, the residence of the maker. 
Smith v. Simmons, 35 Ga. App. 427, 133 S. E- 312. 

No Prior Lien for Money Judgment unless Execution 
Entered. — Applying this section, as modified by sections 
3320 and 3321, a money judgment against the grantor or 
maker of a bill of sale to secure a debt would not have a lien 
as against third parties or those claiming under the bill of 
sale, unless an execution issuing on the judgment should be 
entered on the execution docket. Consequent!}' a junior 
money judgment upon which no execution was issued and 
placed on the execution docket would not create a lien with- 
in the meaning of this section, to which the bill of sale there- 
in referred to could be postponed. Bank v. Beard, 162 Ga. 
446, 452, 134 S. E- 107. 

Priority between Bill of Sale and General Execution. — 
Where a bill of sale to secure a debt as provided in this 
section, is executed and subsequently recorded, whether 
or not such recording should occur within thirty days after 
the date of the execution of the paper, such bill of sale is 
superior in dignity to a subsequently obtained unrecorded 
general execution. Bank v. Beard, 162 Ga. 446 453, 134 S. 
E- 107. 

The status of a recorded bill of sale to secure a debt, 
which was not recorded until after the time provided by 
law, is inferior in dignity to a subsequently obtained exe- 
cution which was recorded prior to the record of the bill of 
sale. Bank v. Beard, 162 Ga. 446, 454, 134 S. E- 107. 

Same — Record from Time of Filing. — In a contest between 
a bill of sale to secure a debt and a lien of a subsequently 
recorded general execution, the record of the bill of sale 
dates back from the time of its filing for record in the 
office of the clerk of the superior court. Bank v. Beard, 162 
Ga. 446, 455, 134 S. E- 107. 

Same — Same — Fractions of a Day. — Where a priority as 
between a bill of sale to secure a debt and the lien of a sub- 
sequently recorded general execution depends upon whether 
the bill of sale was recorded first or the general execution 
was entered upon the execution docket first, such recording 
and such entry upon the execution docket having occurred 
on the same day, in determining such priority fractions of a 
day are to be considered. Bank v. Beard, 162 Ga. 446, 134 
S. E. 107. 

§ 3309. (§ 2774.) To reconvey title of prop- 
erty conveyed to secure debts. 

As to the distinction between a security deed and a mort- 
gage, see note under section 3256. 



Effect of Failure to Record Cancellation. — If record of can- 
cellation is not effected according to this section, the se- 
curity deed appearing of record to be valid, a purchaser with- 
out notice acquires title. Ellis v. Ellis, 161 Ga. 360, 362, 
130 S. E- 681. 

§ 3310. (§ 2775.) Liens against vendee do not 
attach to the property. 

In General. — The right of the mortgagee under this section, 
will be defeated by the payment of the secured debt, either 
by the vendor or his assignee. Gilliard v. Johnston & Miller, 
161 Ga. 17, 129 S. E. 434. 



CHAPTER 8 

Conditional Sales 

§ 3318. (§ 2776.) Conditional sales, how exe- 
cuted. 

I. IN GENERAL. 
Object of Section. — This section is in the nature of a stat- 
ute of frauds and outlaws all reservations of title as against 
third persons where the contract is not written. The words 
"'third parties" include creditors, but are not restricted to 
them, and are to be construed literally. Flemming v. Drake, 
163 Ga. 872, 137 S. E- 268. 

II. FORM AND REQUISITES. 
A. Writing, Execution, etc. 

Description of Property. — The rights of a third party, ac- 
quiring title in good faith from the vendee, are protected, 
where the record of the alleged conditional sale shows on 
its face that not only was no particular property described, 
but that at the time the instrument was signed no particular 
property was in the minds of the parties, and that conse- 
quently no attempt was or could have been made by the in- 
strument to specify or even refer to any particular property. 
Stevens Hdw. Co. v. Bank, 34 Ga. App. 268, 129 S. E. 172. 

Must Be in Writing. — Under this and the following section 
whenever personal property is sold and delivered with a con- 
dition that title shall remain in the vendor until the pur- 
chase price is paid, to be valid as against third parties, the 
contract must be in writing and recorded within thirty days 
after delivery of the property sold, which is the time when 
the sale becomes effective tinder the terms of the statute. 
Anglo-American Mill Co. v. Dingier, 8 Fed. (2d), 493. 

B. PARTICULAR INSTRUMENTS. 

Stipulations for Paying Rent or Hire. — Where a written 
contract provides that the bailee may at any time before the 
expiration of the period of rental become the purchaser of 
the property upon the payment of the aggregate rental value, 
upon which payment he shall receive credit for the payments 
previously made as rental, the contract constitutes a condi- 
tional sale. Singer Sewing Machine Co. v. Tidwell & Co., 36 
Ga. App. 525, 137 S. E. 128. 

§ 3319. (§ 2777.) How recorded. 

I. GENERAL CONSIDERATION. 
Necessity of Recordation — Record Necessary Only as against 
Third Parties.— See II, A, Writing Execution, etc., under 
the preceding section. 

III. PRIORITIES. 

A. In General. 

Necessity for Recordation. — See Sewing Machine Co. V. 
Tidwell & Co., 36 Ga. App. 525, confirming the matter set 
out under this catchline in the Georgia Code of 1926. 



CHAPTER 10 
Liens Other than Mortgages 



ARTICLE 1 

To Whom Granted, Rank and Priority 

§ 3333. (§ 2791.) Rank of liens for taxes. 

In General.— Taxes due the State are not only against the 
owner but against the property also, regardless of judg- 
ments, mortgages, sales, transfers, or incumbrances of 
any kind. Bibb Nat'l Bank v." Colson, 162 Ga. 471, 134 S. 
E- 85. 

Lien for Paving Streets. — A lien against property owners 



[88] 



§ 3335 



FORECLOSURE OF LIENS ON PERSONAL PROPERTY 



§ 3366 



for the proportionate costs of paving streets has the rank 
of a tax lien and its dignity takes rank under this section, 
and consequently takes priority over a prior mortgage. 
Brunswick v. Gordon Realty Co., 163 Ga. 636, 642, 136 S. 
E. 898. 

§ 3335. (§ 2793.) Special lien of laborers. 

To What Property Applicable. — The special lien given by 
this section to laborers, on the product of their labor, at- 
taches to the property of their employers only. Jones v. 
Central Georgia Lumber Co., 35 Ga. App. 172, 132 S. E). 236. 

§ 3348. (§ 2800). Liens for supplies, etc., fur- 
nished. 

As to penalty for giving false information regarding liens 
under this section see section 713 of the Penal Code. 

I. BY AND TO WHOM SUPPLIES FURNISHED. 

Landlord As Surety. — See O'Quinn v. Carter, 34 Ga. App. 
310, 129 S. E. 296, citing and following the statement made 
under this catchline in the Georgia Code of 1926. 

III. CHARACTERISTICS OF LIEN. 

Not Affected by Bankruptcy. — See Sitton v. Turner, 34 
Ga. App. 12, 128 S. E. 77, citing and following the state- 
ments under this catchline in the Georgia Code of 1926. 

Similar to Claim for Purchase Money. — Under this sec- 
tion, landlords furnishing supplies to their tenants for the 
purpose of making crops on the rented premises have a 
lien, by operation of law, on the crops there made in the 
year for which the supplies were furnished and such a 
lien is in the nature of a claim for purchase-money. Mutual 
Fertilizer Co. v. Moultrie Bkg Co., 36 Ga. App. 322, 136 
S. F- 803. 

Execution Against Supplies. — Quaere : After supplies have 
been furnished but before they are utilized by the tenant 
for the purpose intended, are they subject to levy and sale 
under executions against the tenant held by third persons? 
Mutual Fertilizer Co. v. Moultrie Bkg. Co., 36 Ga. App. 
322, 136 S. F. 803. 

§ 3353. (§ 2804.) Mechanics' liens, how de- 
clared and created. 

Waiver of Right to Object to Lien. — An owner who re- 
sists foreclosure upon the ground that the material was 
not such as provided for by the contract may waive the 
right to assert this defense, and thereby be estopped to 
dispute evidence on the part of the materialman to the 
contrary. Acceptance and use of such material without ob- 
jection or complaint, and payment therefor to another in- 
stead of to the materialman, will authorize the conclusion 
that the owner waived his right and estopped himself. 
Rylander v. Koppe, 162 Ga. 300, 301, 133 S. F- 236. 

§ 3354. (§ 2805.) Mechanic's lien on per- 
sonalty. 

Enforcement. — See Young v. Alford, 36 Ga. App. 708, 137 
S. E. 914, citing and following the statement made under 
this catchline in the Georgia Code of 1926. 

§ 3356. (§ 2807.) Liens in favor of planing- 
mills, etc. 

Applied in Young v. Alford, 36 Ga. App. 708, 137 S. E. 
914. 

§ 3364(1). Jeweler's liens for repair. — It shall 
be lawful for any jeweler, or other person, firm, 
or corporation engaged in the business of repair- 
ing watches, clocks, jewelry and other articles of 
similar character, to sell such articles upon which 
charges for repairs, including work done and ma- 
terials furnished, have not been paid, which have 
remained in the possession of such jeweler, per- 
son, firm, or corporation, for a period of one year 
after the completion of said repairs, for the pur- 
pose of enforcing the lien of such jeweler, per- 
son, firm, or corporation for materials furnished 
and work done in repairing such article or arti- 
cles. Acts 1927, p. 218. 

§ 3364(2). Notice before sale. — Before any 
sale shall be made as provided in section 3364(1), 
the person, firm, or corporation making such sale 
shall give thirty days' notice thereof by posting 
a notice of such sale before the court-house door 



of the county in which such repairs were made, 
giving the name of the owner of the article or 
articles so repaired, if known, and if not known, 
the name of the person from whom such article 
or articles were received, a description of the ar- 
ticle or articles to be sold, and the name of the 
person, firm, or corporation making such repaiis 
and proposing to make such sale; and shall also 
give written notice thereof by sending a registered 
letter to the last known address of the owner of 
such article or articles, or the person who left 
such article or articles for repairs, advising such 
persons of the time and place of sale, the descrip- 
tion of the article or articles to be sold, and the 
amount claimed by said person, firm, or corpo- 
ration for such repairs, including work done and 
materials furnished, and the said amount so 
claimed for such repairs shall also be stated in 
the notice posted before the court-house door as 
hereinbefore stated. 

§ 3364(3). Sale at public outcry before court- 
house. — All sales made under the provisions of 
this Act shall be made at public outcry, before 
the court-house door of the county where the per- 
son, firm, or corporation making such sale had 
his place of business at the time of receiving the 
article or articles to be sold, and during the hours 
provided by law for holding sheriff's sales. 

§ 3364(4). Application of proceeds. — The pro- 
ceeds of any sale made under the provisions of 
this Act shall be applied first to the payment of 
the lien for services rendered by the person, firm, 
or corporation making such sale, for work done 
and materials furnished in repairing such article 
or articles sold, including the cost of the regis- 
tered notice hereinbefore provided for, and the 
residue, if any, shall be paid to the ordinary of 
the county wherein such sale shall have taken 
place, who shall hold said sum for a period of 
one year, during which time the owner or own- 
ers of the article or articles so sold may claim said 
residue; but at the end of said period of one year, 
if said residue shall not have been claimed by the 
owner or owners of the article or articles, so sold, 
then and in that event said residue shall by the 
said ordinary be placed in the common-school 
fund of the county wherein said sale was made. 

§ 3364(5). Display of sign as to intention to 
sell. — Any jeweler, person, firm, or corporation 
desiring to avail himself of the provisions of this 
Act shall display a sign in his place of business 
notifying the public that all articles left for re- 
pairs will be sold for charges at the expiration 
of one year from completion of such repairs. 



ARTICLE 3 
Foreclosure of Liens on Personal Property. 

§ 3366. (§ 2816.) Enforcement of liens on per- 
sonalty. 

What Counter-Affidavit Must Contain.— Only defensive 
matter to a foreclosure of a lien on personalty being re- 
quired in a counter-affidavit filed by the defendant under 
this section such an affidavit, when made by the defend- 
ant's agent, as provided in section 3607, need not contain 
a sworn averment that the affiant is agent for the de- 
fendant. It is sufficient if such affidavit is in fact made by 
the defendant's duly authorized agent, and where the af- 
fidavit purports on its face to be executed by such agent, 
the agency is presumed and the affidavit is prima facie 
valid. Georgia Lumber Co. v. Thompson, 34 Ga. App. 281, 
129 S. E. 303. 



[89] 



§ 3374 



GENERAL PRINCIPLES 



§ 3436 



ARTICLE 4 

Miscellaneous Provisions 

§ 3374. (§ 2834.) Attorney's rights in claim 
cases. 

Cfted in Porter v. Stewart, 163 Ga. 655, 660, 137 S. E. 28. 



CHAPTER li 
Homestead 



ARTICLE 1 
Exemptions 



SECTION 4 

Surveyors Return; Approval of Plat and Appli- 
cation 

§ 3386. (§ 2836.) Objections, how and when 
made. 

Effect in Bankruptcy of Failure to Set Aside Exemption. 

— The fact that the bankrupts, as residents of Georgia, 
did not set apart exemptions in the manner provided by 
either Const. Ga. art. 9, sec. 1, or sections 3416, 3378, et 
seq., did not preclude the allowance of exemptions under 
such law in bankruptcy proceedings. Clark v. Nirenbaum, 
8 Fed. (2d). 451. 

The purpose of an objection to the schedule for want of 
sufficiency and fullness is to prevent the allowance of the 
homestead (section 3378 paragraph 3), and it does not fail as 
an objection under this section merely because it may be 
described as an "objection to the homestead." Aldav v. 
Spooner, 35 Ga. App. 614, 617, 134 S. F- 343. 

When Appeal Lies. — Where a creditor filed objections, one 
of which was to the schedule for want of sufficiency and 
fullness in that the applicant had omitted certain per- 
sonalty, appeal to the superior court lies from an adverse 
judgment of the ordinary. Alday v. Spooner, 35 Ga. App. 
614, 134 S. F- 343. See note of this case under § 3388. 

§ 3388. (§ 2838.) Appraisers and appeals. 

Objections Not Limited to Schedule. — This section does not 
provide exclusively for objections to the schedule. The 
creditor is not required to object to the schedule, if he de- 
sires to dispute "the propriety of the survey, or the value 
of the premises so platted as the homestead." Aldav v. 
Spooner, 35 Ga. App. 614, 616, 134 S. F- 343. 



ARTICLE 2 
Statutory or Short Homestead 



SECTION l 
Property Exempt from Sale 
§ 3416. (§ 2866.) Property exempt from sale. 

As to effect in bankruptcy of failure- to set aside home- 
stead exemption, see note to § 3378. See annotations under 
1 6582. 

I. GENERAL NOTE. 

Exemption as Homestead — Waiver after Setting Apart. — 
There is no true homestead in Georgia, but under this sec- 
tion there is a direct exemption of property without regard 
to residence or home, realty or personalty, and though such 
exemption may be waived before setting apart (Const. Ga. 
art. 9, sections 3, 5), after setting apart of exempt property 
it cannot be aliened or incumbered by debtor. In re Tram- 
mell, 5 Fed. (2d), 326. 

Increase of Exemption. — Debtor's right of exemption under 
Const. Ga. art. 9, section 1, and this section, affects debtor's 
whole property as an inchoate incumbrance created by law, 
and cannot be increased as to debts in existence without vio- 
lating contract clause of Federal Constitution. In re Tram- 
mell, 5 Fed. (2d), 326. 

Setting Aside in Bankruptcy Court. — "Setting apart" of 
debtor's exempt property is a mere identification of the 



property to which the exemption is applied, the burden of 
securing which is put on debtor and is a proper function 
of bankruptcy court, whose action is equivalent to action by 
the state court in effectuating exemption. In re Trammell, 
5 Fed. (2d), 326. 

Alienage as Affecting Right. — Alienage of resident of 
state is no bar to claim of exemption provided by this sec- 
tion. In re Trammell, 5 Fed. (2d), 326. 

Same — Where Family Resident Out of State. — Alien resi- 
dent of Georgia having no family within State, but hav- 
ing mother in Poland and sister in other state to whom he 
regularly sends money, is not the head of a family entitled 
to exemption provided bv this section. In re Trammell, 5 
Fed. (2d), 326. 

When Property Set Aside to Defeat Sale. — Setting apart 
of property exempt under this section, though necessary to 
defeat sale, is timely, when not had before levy, if made 
before sale. In re Trammell, 5 Fed. (2d), 326. 

After Acquired Property. — Property not owned by a debt- 
or, when filing his schedule of property exempted under this 
section but which is afterwards acquired by him, is not sub- 
ject to exemption under the schedule, although described 
therein. Smith v. Fckles, 65 Ga. 326; Fuller v. Doyal, 34 
Ga. App. 245, 129 S. F- 117. 



SECTION 2 
How Set Apart 
§ 3421. (§ 2871.) Sale subject to incumbrance. 

Pending Application. — See Rogers v. Kimsey, 163 Ga. 146, 
135 S. F- 497, citing and following the statement under this 
catchline in the Georgia Code of 1926. 



CHAPTER 12 
Interest and Usury 



ARTICLE 1 

General Principles 

§ 3431. (§ 2881.) Interest only from demand, 
when. 

Provision That Obligation Bear No Interest.— A stipu- 
lation in a contract for the sale of goods, to be delivered 
within a reasonable time in the future and to be paid for 
on delivery, to the effect that the obligation of the purchaser 
was to bear no interest, did not mean that the purchaser 
would not be required to pay interest in case of and after 
his default, but was merely a provision against the payment 
of interest prior to the maturity of the purchase-money. 
Morgan v. Colt Co., 34 Ga. App. 630, 130 S. F. 600. 

§ 3434. (§ 2884.) Interest on liquidated demands. 

I. WHEN INTEREST ALLOWED. 
When Recovery Exceeds Amount Stated in Bond. — The 

defendant may be liable, though the aggregate amount of 
the plaintiff's recovery, both for principal and interest, wilt 
exceed the maximum amount of the defendant's liability 
as stated in a bond. United States Fidelity, etc., Co. v. 
Koehler, 36 Ga. App. 396, 137 S. E. 85. 

On Damages Recovered for Breach of Sale Contract. — Un- 
der this section interest is recoverable on damages recovered 
for breach of a contract of sale by the buyer from the time 
the amount of damages became fixed by a resale. Bell v. 
Lamborn, 2 Fed. (2d), 205. 

II. LIQUIDATED DEMANDS. 
A. Particular Instances of Liquidated Demands. 
Breach of a Contract of Sale. — Where a purchaser breached 
a contract by a failure to pay the purchase -money on the 
delivery of the goods, the seller was entitled to recover the 
agreed purchase-price as liquidated damages, with interest 
thereon from the time the purchaser was liable and bound to 
pay. Morgan v. Colt Co., 34 Ga. App.. 630, 130 S. F- 600. 

§ 3436. (§ 2886.) Beyond eight per cent, interest 
forbidden. 

What Constitutes Usury. — There are four requisites of 
every usurious transaction: (1) A loan or forbearance of 
money, either express or implied. (2) Upon an under- 
standing that the principal shall or may be returned. (3) 



[90] 



§ 3438(1) 



PRINCIPAL AND SURETY 



§ 3541 



And that for such loan or forbearance a greater profit than 
is authorized by law shall be paid or is agreed to be paid. 
(4) That the contract was made with an intent to violate 
the law. The fourth element may be implied if all the others 
are expressed upon the face of the contract. Bank v. Farm- 
ers State Bank, 161 Ga. 801, 810, 132 S. E- 221. 

Court Will Look at Substance of Transaction. — -The inge- 
nuity of man has not devised a contrivance by which usury 
can be legalized, if it appears that the purpose of the scheme 
was to exact a larger profit for the use of the money act- 
ually advanced than eight per cent, per annum. In deter- 
mining whether the contract is usurious the substance of 
the transaction will be critically inspected and analyzed; for 
the name by which the transaction is denominated is al- 
together immaterial if it appears that a loan of money was 
the foundation and basis of agreement which is under con- 
sideration. Bank v. Farmers State Bank, 161 Ga. 801, 132 
S. E- 221. 

If an agreement is a mere device or subterfuge by which 
one party was permitted to charge a higher than the law- 
ful rate of interest allowed in this State for a loan of money, 
the agreement would be usurious, and the company could 
collect no interest at all. Stewart v. Miller & Company, 161 
Ga. 919, 925, 132 S. E- 535. 

"Underwriting" Not within Section. — An 'underwriting," 
is not an agreement to loan money and under the circum- 
stances of the case this section does not applv. Stewart 
v. Miller & Co., 161 Ga. 919, 132 S. E. 535. 

Transaction with underwriter of bond issue, who received 
discount of 15 per cent from face value of bonds and other 
specific allowances, is not usurious, under this section, in 
view of necessity for resale of bonds. G. L. Miller & Co. v. 
Claridge Manor Co., 14 Fed. (2d), 859. 

Allowance of Expenses — Burden of Proof. — The party al- 
leging that a transaction with an underwriter of a bond 
issue was usurious by reason of an allowance for expenses 
has the burden of proving that the amount was so extravagant 
as to show bad faith. G. L. Miller & Co. v. Claridge Manor 
Co., 14 Fed. (2d), 859. 

Charging Interest on Interest Due. — A contract to pay 
eight per cent, per annum semi-annually, with interest on 
the semi-annual payments of interest after due, does not 
constitute usury under this section. Pendergrass v. New 
York Life Ins. Co., 163 Ga. 671, 137 S. E- 36. 

Question for Jury. — The question as to whether one in- 
tends to exact usury by a contrivance or device or whether 
the alleged charge is bona fide for actual services is for the 
determination of the jury. Bank v. Farmers State Bank, 
161 Ga. 801, 132 S. E. 221. 

§ 3438 (1). All interest forfeited for usury. 

Constitutionality. — See Mitchell v. Loan & Investment 
Co., 161 Ga. 215, 130 S. E. 565, approving the statement un- 
der this catchline in the Georgia Code of 1926. 

Forfeiture of Interest Is Sole Forfeit. — Under the laws of 
Georgia the exaction of a higher rate of interest for the use 
of money than eight per centum per annum is unlawful, 
and prevents the collection of any interest whatever. Bank 
v. Farmers State Bank, 161 Ga. 801, 132 S. E- 221; but no 
other forfeit shall be occasioned. Stewart v. Miller & Co., 
161 Ga. 919, 132 S. E- 535; Padgett v. Jones, 34 Ga. App. 
244, 129 S. E. 109. 

Thus an assignment of salary to secure a usurious debt 
would be valid as to the principal. Flood v. Empire Invest- 
ment Co., 35 Ga. App. 266, 271, 133 S. E. 50. 



ARTICLE 2 
Business of Loans on Personal Property 

§ 3446. License required. 

See note to § 1770(61). 

Purpose of Article. — As the only provision in this article 
for raising revenue is that contained in § 3447 it is mani- 
fest that its purpose is not the raising of revenue, but is 
the protection of those who are compelled to borrow from 
improper lenders who have failed to comply with the stat- 
utes for such protection. McLamb v. Phillips, 34 Ga. App. 
210, 129 S. E. 570. 

Effect of Noncompliance on Contract. — Therefore a contract 
made without a compliance with and in violation of the 
statute is void and unenforceable. McLamb v. Phillips, 
34 Ga. App. 210, 129 S. E. 570. 



CHAPTER 13 
Of Bailments 



ARTICLE l 
General Principles 
§ 3472. (§ 2899.) Extraordinary. 

Scope of Section. — See Peavy v. Peavy, 36 Ga. App. 202, 
204, 136 S. E- 96, citing and following the statement under 
this catchline in the Georgia Code of 1926. 

§ 3473. (§ 2900.) Gross neglect. 

When Violation of Speed Law Not Gross Negligence. — 

Conceding, but not deciding, that the State law, prohibiting 
the driving of automobiles at a greater rate of speed than 
ten miles an hour while approaching and traversing inter- 
sections of public highways, applies to intersections of 
streets in a city, the violation of this law would not con- 
stitute gross negligence. Southern Ry. Co. v. Davis, 132 
Ga. 812, 817, 65 S. E. 131; Peavy v. Peavy, 36 Ga. App. 
202, 204, 136 S. E- 96. 

§ 3474. (§ 2901.) Due care in child. 

No Invariable Rule. — The care and diligence required of 
an infant of tender years is not fixed by any invariable rule 
with reference to the age of the infant or otherwise. It 
depends upon the capacity of the particular infant, taking 
into consideration his age as well as other matters. Mc- 
Larty v. Southern Ry. Co. 127 Ga. 161, 56 S. E- 297; Mac- 
Dougald Construction Co. v. Mewborn, 34 Ga. App. 333, 
337, 129 S. E. 917. 

Infants under Fourteen. — Infants under fourteen years of 
age are chargeable with contributory negligence resulting 
from a want of such care as their mental and physical ca- 
pacity fits them for exercising, and assume the risk of those 
patent, obvious and known dangers which they are able to 
appreciate and avoid. Evans v. Josephine Mills, 119 Ga. 448. 
46 S. E. 674; MacDougald Construction Co. v. Mewborn, 
34 Ga. App. 333, 337, 129 S. E- 917. 

Question of Capacity for Jury. — See Western & Atlantic 
R. R. v. Reed, 35 Ga. App. 538, 134 S. E- 134. 

§ 3475. (§ 2802.) Imputable negligence. 

Negligence of Husband Not Imputed to Wife. — Where a 
husband, not acting as agent of his wife, operates an au- 
tomobile not belonging to the wife, but under her command, 
his negligence is not imputable to the wife. Holloway v. 
Mayor, 35 Ga. App. 87, 132 S. E. 106. 

Instructions to Jury. — For a case where it was not error 
to instruct the jury, as a matter of law, that the negligence 
of the driver of the vehicle was not imputable to the per- 
son for whose homicide the action was brought. See West- 
ern & Atlantic Railroad v. Reed, 35 Ga. App. 538, 134 S. E- 
134. 



ARTICLE 5 
Pledges and Pawns 

§ 3533. (§ 2961.) Transfer. 

Transferee Stands in Transferor's Shoes. — The transferee 
of a pledge is a purchaser of the thing pledged. Continental 
Trust Co. v. Bank, 162 Ga. 758, 761, 134 S. E. 775. 



CHAPTER 14 
Of Principal and Surety 



ARTICLE 1 
The Contract 



Williams, 36 Ga. 



§ 3540. (§ 2968.) Stricti juris. 

Section cited in Southern Surety Co. v. 
App. 692, 137 S. E. 861. 

§ 3541. (§ 2969.) Form immaterial. 

Cited in Mulling v. Bank. 35 Ga. App. 55. 135 S. E. 222; 
Federal Reserve Bank v. Lane, 35 Ga. App. 177, 132 S. E- 247. 

[91] 



§ 3544 



LIABILITIES OF AGENT AS TO THIRD PERSONS 



§ 3607 



ARTICLE 2 
Relative Rights of Creditor and Surety. 

§ 3544. (§ 2972.) Of risk. 

See notes to § 4294(120). 



ARTICLE 3 
Rights of Surety against Principal 

§ 3556. (§ 2984.) Proof of suretyship. 

Apparent Joint Principals. — See Nunnally v. Colt Co., 34 
Ga. App. 247, 129 S. E. 119, following the principle stated in 
the first paragraph under this catchline in the Georgia Code 
of 1926. 

Same — Married Women. — Where a married woman signs a 
note ostensibly as a maker jointly with her husband, when 
in fact she is a surety only, before she can establish the 
fact of her suretyship as against the payee of the note it must 
be made to appear, despite her apparent relationship as 
principal, that the payee, with knowledge of the facts 
which would constitute her a surety, contracted with her 
as a surety. Bennett v. Danforth, 36 Ga. App. 466, 137 
S. E- 285. 



ARTICLE 5 
Rights of Sureties as to Third Persons 

§ 3567. (§ 2995.) Subrogation. 

Applied in McWhorter v. Bank, 162 Ga. 627, 134 S. E. 606. 
Section Cited in Reid v. Whisenant, 161 Ga. 503, 131 S. E- 
904. 



CHAPTER 15 
Of Principal and Agent 



ARTICLE l 

Relations of Principal and Agents Among Them- 
selves 

§ 3571. (§ 2999.) What may be done by agent. 

Delegation of Power by Agent in General. — For a case 
holding" substantially with the doctrine laid down in the case 
in paragraph three under this catchline in the Georgia Code 
of 1926, see Mathis v. Western, etc., Railroad, 35 Ga. App. 
672, 680, 134 S. E. 793. 

§ 3575. (§ 3003.) Revocation. 

Unreasonable Instructions/ — Bona Fide Disregard. — Where 
an agency is coupled with an interest, and the principal 
gives to the agent unreasonable instructions detrimental to 
the agent's interest, the agent may disregard the instruc- 
tions and act for himself, provided he acts in good faith; 
and the principal would be bound thereby. Southern Trad- 
ing Corp. v. Benchley Bros., 34 Ga. App. 625, 130 S. E- 691. 

§ 3576. (§ 3004.) Agent limited by his authority. 

Section Applied in Benton v. Roberts, 35 Ga. App. 749, 134 
S. E. 846. 

§ 3577. (§ 3005.) Money deposited by agent. 

Section Quoted in Oslin v. State, 161 Ga. 967, 132 S. E- 542. 

§ 3578. (§ 3006.) Payment to agent failing to 
produce obligation. 

Section Quoted in Oslin v. State, 161 Ga. 967, 132 S. E- 542. 

§ 3579. (§ 3007.) Agents and fiduciaries to keep 
accounts. 

Section Quoted in Oslin v. State, 161 Ga. 967, 132 S. E. 542. 

§ 3581. (§ 3009.) Diligence of an agent. 

Section Cited in Benton v. Roberts, 35 Ga. App. 749, 134 
S. E- 846. 

§ 3584, (§ 3012.) Estoppel. 

Sub-Agent May Deny Title in Employing Agent and in 
Corporation.— In Paschal v. Godley, 34 Ga. App. 321, 322, 129 
S. E- 565, it was said: "While an agent can not dispute his 
principal's title except in certain instances not present in 



this case, yet if * * * in possession of the cattle merely 
by virtue of an employment by * * * an officer of the 
corporation, * * * he would not because of these facts be 
estopped from defending upon the ground that the title was 
* * * in the company." 

§ 3587. (§ 3015.) Brokers right to commission. 
II. COMPENSATION. 

B. Sale by Principal. 

Before Broker Procures Purchasers — Exclusive Authority 
and Exclusive Right. — A distinction has been raised between 
an exclusive agency to sell and an exclusive right to sell. 
Several cases in which there was merely an exclusive agency 
have called attention to the fact that an exclusive right was 
not conferred, without stating what the effect of conferring 
such right would be, and when that question has come 
squarely before the courts they have held that conferring 
the exclusive right to sell excluded sales by the owners them- 
selves. 10 A. L. R. 818. See dissenting opinion of Luke, J., 
in Barrington v. Dunwody, 35 Ga. App. 517, 520, 134 S. E. 
130. 

Same — Same — Result as to Owners Right to Sell. — "Ob- 
viously if the broker is given an exclusive right to sell, it 
precludes his employer from selling in any manner other than 
through that particular broker's agency. The grant of 
merely an exclusive agency, however, does not have the ef- 
fect of preventing the owner from selling independently 
through his own personal efforts, as it simply secures to 
the broker an exclusive 'agency,' that is, the employer can 
not sell through the medium of another broker without vio- 
lating the terms of his agreement and rendering himself li- 
able therefor." 4 R. C. L. 260, section 12. Quoted in the dis- 
senting opinion of Luke, J., in Barrington v. Dunwody, 35 
Ga. App. 517, 520, 134 S. E. 130. 

D. Modification of Effects of Section by Contract — Sales 
Agents — Necessity for Consummation of Sale. 

Modification by Agreement. — An owner may stipulate in 
the contract of listment that he is not to be subject to the 
payment of brokerage commissioners until the actual accept- 
ance of title by the officer. Kiser Real Estate Co. v. Ship 
pen Hardwood Lumber Co., 34 Ga. App. 308, 129 S. E- 294. 



ARTICLE 2 
Rights and Liabilities of Principal as to Third 

Persons 

§ 3595. (§ 3023.) Extent of authority. 

III. SPECIAL AGENTS. 

Duty to Investigate Authority. — For a case which adheres 
to the rule laid down in the first paragraph under this catch- 
line in Georgia Code of 1926, see Quillion & Bros. v. Wales 
Adding Machine Co., 34 Ga. App. 135, 136, 128 S. E- 698. 

How Far Principal Bound. — One who deals with a special 
agent, knowing at the time the limits within which the 
agent, under the terms of his appointment, has authority to 
bind his principal, is bound to act with reference to this 
knowledge, and can not hold the principal liable for loss 
occasioned by acts of the agent in excess of, or contrary to, 
the latter's authority in the premises. See Littleton v. Loan 
etc., Asso., 97 Ga. 172, 25 S. E. 826; Quillian & Bros. v. 
Wales Adding Machine Co., 34 Ga. App. 135, 136, 128 S. E- 
698. 

Authority to Collect. — In Quillan & Bros. v. Wales Adding 
Machine Co., 34 Ga. App. 135, 137, 128 S. E- 698, is quoted 
the following statement taken from an opinion delivered by 
Mr. Justice Lewis, in Walton Guano Co. v. McCall, 111 Ga. 
114, 116, 36 S. E- 469: "As a general rule a special agent or 
attorney to collect a debt is not authorized to receive any- 
thing as a payment thereon except actual cash." In the 
same case it was added that an agency does not necessarily 
include an agency to collect. 

§ 3G06. (§ 3034.) Agent is a competent witness. 

I. IN GENERAL. 
Cited in George v. Rath stein, 35 Ga. App. 126, 132 S. E- 

414. 



ARTICLE 3 

Rights and Liabilities of Agent as to Third 

Persons 

§ 3607. (§ 3035.) Agent may act under this Code, 
for principal. 

See notes to § 3366 par. 6. 



[ 92 



§ 3621 



LANDLORD AND TENANT 



§ 3692 



FIFTH TITLE 
Of Property and the Tenure by Which it is Held 



CHAPTER l 
Of Realty 
§ 3621. (§ 3049). Fixtures. 

Particular Fixtures Considered and Principles Illustrated — 
Machinery. — Boilers, smokestacks, etc., installed in creamery 
plant, removal of which would incapacitate plant, is, under 
this section, fixtures included within a prior mortgage of 
after-acquired property, which became superior to vendor's 
reservation of title. In re Moultrie Creamery & Produce Co., 
2 Fed. (2d), 129. 

However heavy mill machinery not attached to the build- 
ing, but held in place by its own weight, does not pass under 
a mortgage of the realty and appurtenances, which did not 
mention the machinery. Anglo-American Mill Co. v. Ding- 
ier, 8 Fed. (2d), 493. 

§ 3630. (§ 3058.) Streams boundary lines. 

Constitutionality. — The provisions in this section as to 
change of currents and gradual accretions are not uncon- 
stitutional as a violation of the due-process clause of the 
State and Federal Constitutions. Johnson v. Hume, 163 Ga. 
867, 137 S. F. 56. 



signor and the assignee, but show that the parties con- 
templated an immediate change of ownership with respect 
to the particular fund in question, not a change of owner- 
ship when the fund should be collected or realized, but at 
the time of the transaction relied upon to constitute the as- 
signment. Brown Guano Co. v. Bridges, 34 Ga. App. 632, 
656, 130 S. F- 695. 



SIXTH TITLE 
Estates and Rights Attached Thereto 



CHAPTER 1 
Of Absolute Estates or in Fee Simple 
§ 3659. (§ 3083.) What words create. 

Intention of Maker Cardinal Rule of Construction. — For 

cases holding substantially with cases cited under this 
catchline in the Georgia Code of 1926, see Banks v. Mor- 
gan, 163 Ga. 468, 470, 136 S. F- 434, and cases there cited. 



CHAPTER 3 

Of Personalty 

§ 3651(1). Crops; liens, how attested and re- 
corded; levies on unmatured crops. 

Effect of Sale of Land with Growing Crops. — Since the 
passage of this section the purchaser of lands upon which 
crops are growing, at a sale by the trustee in bankruptcy 
of the owner of the land, does not acquire any interest in 
or title to such crops. Such purchaser under such sale only 
acquires tit'.e to the land so purchased, and the right to the 
rents, issues, and profits thereof after the date of his pur- 
chase. Chatham Chemical Co. v. Vidalia Chemical Co., 163 
Ga. 276, 136 S. E. 62. 

Effect of Land Mortgage upon Crop Mortgage. — Want of 
valid title in the mortgagor to the premises on which mort- 
gaged crops are grown, and outstanding title in a third 
person who is no party to the suit, does not bar an action 
brought by the mortgagee to foreclose and enforce his mort- 
gage on such crops. Chatham Chemical Co. v. Vidalia 
Chemical Co., 163 Ga. 276, 136 S'. E. 62. 

Title to Crops on Land Encumbered before but Sold 
after Section.. — Notwithstanding this section, the purchaser 
of lands under a power of sale in a security deed of older 
date than the section acquired title to crops grown after 
the passage of this section at the time of the sale if they 
were grown and owned by the grantor in such deed; 
but if the grantor had in fact, prior to such sale, rented in 
good faith these lands to others, who raised such crops, 
such purchaser did not acquire title to them, but only the 
interest of the grantor in such deed in these crops. Chason 
v. O'Neal, 158 Ga. 725, 124 S. F. 519; Brooks v. Causey, 36 
Ga. App. 233, 136 S. F. 28Z. 

§ 3652. (§ 3076.) Rights and remedies. 

There Can Be No Right of Action until There Has Been 
a Wrong. — See Strachan Shipping Co. v. Hazlip-Hood Co., 
161 Ga. 480, 131 S. F- 283, which quotes with approval the 
doctrine of the cases under this catchline in Georgia Code 
of 1924. 

§ 3653 (§ 3077.) Assignment of choses in action, 

III. WHAT IS ASSIGNABLE. 

B. Under This Section. 
2. Particular Choses Considered. 
Funds in Potential Existence. — It is not necessary that 
the fund attempted to be assigned shall be in actual exist- 
ence at the time, for it is well settled that it is sufficient if 
it "exists potentially." Brown Guano Co. v. Bridges, 34 Ga. 
App. 652, 656, 130 S. F. 695. 

VI. EQUITABLE ASSIGNMENT. 

Immediate Change of Ownership. — In order to infer an 
equitable assignment, such facts and circumstances must 
appear, as would not only raise an equity between the as- 

[ 93 



CHAPTER 3 
Of Estates in Remainder and Reversion 
§ 3676. (§ 3100.) Vested or contingent. 

What Uncertainties Make Contingency. — There is a dis- 
tinction between the uncertainty which makes a remainder 
contingent and the uncertainty of the estate ever taking 
effect in possession, which is incidental to even a vested 
remainder. In a vested remainder the time of possession 
and the enjoyment being deferred, there is always an un- 
certainty as to whether the estate will ever be enjoyed in 
possession. Walters v. Walters, 163 Ga. 884, 890, 137 S. F. 
386. See also, 23 R. C. L. 500, sec. 33. 

Same — Vested Subject to Be Divested. — Where remain- 
ders are subject to be divested, in whole or in part, by the 
disposition of the whole or some part of the property left 
by the testator, this contingency does not deprive the re- 
mainder of its character as vested. Walters v. Walters, 163 
Ga. 884, 890, 137 S. F. 386. See also Melton v. Camp, 121 
Ga. 693, 49 S. F- 690. 

Illustrations of Vested Remainders. — For a case holding 
substantially with McDonald v. Taylor, 107 Ga. 43, 32 S. F. 
879, cited under this catchline in Georgia Code of 1926, see 
Walters v. Walters, 163 Ga. 884, 890, 137 S. F. 386. 

§ 3678. (§ 3102.) Perpetuities. 

Cases Not within Rule. — Clearly the limitation of an es- 
tate to plaintiff for life, and at her death to her children 
born and to be born, does not create a perpetuity. Palmer 
v. Neely, 162 Ga. 767, 135 S. F- 90. 

§ 3681. (§ 3105.) Assent of the executor. 

General Rule. — The first sentence of this section merely 
states the general rule. David v. David, 162 Ga. 528, 134 S. 
E. 301. 



CHAPTER 4 
Of Estates for Years 
§ 3685. (§ 3109.) Definition. 

Leasehold as Realty. — The plaintiff had a written lease 
from the owner of the premises in question, for a term of 
five years. This created an estate in realty in the lessee as 
an estate for years, if it be in lands, passes as realty in 
this State. Anderson v. Kokomo Rubber Co., 161 Ga. 842, 
846, 132 S. F- 76. 



CHAPTER 5 
Of Landlord and Tenant 
§ 3692. (§ 3116.) Implied contract to pay rent. 

Security Deed Given but Possession Retained. — One who 

makes to a creditor for the purpose of securing a debt, a 
deed to land, but retains possession of the land, does not 
thereby become the "tenant" either of such creditor or of 
his vendee. Finn v. Reese, 36 Ga. App. 591, 592, 137 S. F. 
574. See also, Ray v. Boyd, 96 Ga. 808, 22 S. F- 916. 

] 



3694 



CREATION AND NATURE OF TRUST ESTATES 



§ 3736 



§ 3694 (§ 3118.) Landlord not liable for negli- 
gence of tenant. 

Duty and Liability of Landlord for Repairs. — It would 
seem that the degree of diligence required under the sec- 
tion in keeping the premises safe does not consist in either 
slight diligence or of extraordinary diligence, but rather 
consists of ordinary care, such as a prudent householder 
might reasonably be expected to exercise. See Cuthbert v. 
Schofiekl, 35 Ga. App. 443, 133 S. E. 303. 

§ 3698. (§ 3122.) Estoppel. 

Section cited in Hardeman v. Ellis, 162 Ga. 664, 135 S. E- 
195. 

§ 3699. (§ 31213.) Repairs and improvements. 

II. DUTY AND LIABILITY OF LANDLORD. 

Extent of Landlord's Duty to Repair — Premises Suited for 
Purpose. — Except as provided by this section there is in 
this State, as at common law, no implied covenant that the 
premises are suitable for the purpose for which they are 
leased, or for the particular use for which they are in- 
tended by the tenant. Cox v. Lowney Co., 35 Ga. App. 51, 
132 S. E. 257. And an instruction that it is the duty of the 
landlord to make the premises suitable for the purpose in- 
tended is erroneous. Id. 

In this case the court cites the decisions appearing under 
this catchline in the Georgia Code of 1926 and admits that 
they would seem to support a holding to the contrary. A 
nice distinction, however, is drawn between the duty to 
keep in repair and the duty to make repairs, and, on reason 
and principle, it appears that such a distinction is justifiable 
because if the property leased is inherently unfitted for 
purposes intended, irrespective of repairs, (in the principle 
case a basement as a candy storeroom) the tenant should 
be charged with notice of the inadequacies. The situation 
is analogous to that which exists when premises are leased 
which contain patent defects under which circumstances 
the landlord is not held accountable for repairs. — Ed. Note. 

§ 3705. (§ 3129.) Title to cropper's crop in 
landlord. 

Title to Crop — When Goes to Cropper. — For a case hold- 
ing substantially with cases cited under this catchline in 
the Georgia Code of 1926, see Folds v. Harris, 34 Ga. App. 
445, 446, 129 S. E- 664. 

Same — After Settlement and before Division. — Where there 
has been no division of the crop between the landlord and 
the cropper and where the cropper's portion of the crop has 
not been set aside, and thus the cropper has not received 
his part of the crop, no title to the crop passes into him, 
although he may have settled with the landlord for all ad- 
vances made. Atlanta Trust Co. v. Oliver- McDonald Com- 
pany, 36 Ga. App. 360, 136 S. E. 824. 

Same — Interest of Landlord. — A landlord's interest in the 
title to crops grown by his cropper is only to the extent of 
the value of the landlord's portion of the crops, as well as 
of any indebtedness for advances made to the cropper. 
Franklin v. Tanner, 34 Ga. App. 254, 129 S. E. 114. 

Trover against Third Person. — A landlord, who has not 
settled with his cropper but has received only a part of the 
crops to which he is entitled and whose interest in the re- 
maining crops is in an amount less than their value, can, 
in a trover suit for their conversion against a third person, 
who has acquired them by purchase from the cropper, re- 
cover only to the extent of the amount of his claim against 
the cropper. Franklin v. Tanner, 34 Ga. App. 254, 129 S. 
E. 114. 

§ 3711. (§ 3135.) Casualties no abatement of 
rent. 

What Amounts to Eviction. — Where a landlord enters 
upon the rented premises for the ostensible purpose of 
making repairs, irrespective of whether it is in conformity 
with a legal obligation due to his tenant, or whether it is 
for the purpose of protecting his own property, if his con- 
duct consists of negligent acts of such grave and permanent 
character as would render the premises unfit for tenancy, 
and is such as would legally import the intent to deprive 
the tenant of their enjoyment, it amounts in law to an evic- 
tion of the tenant, and the landlord can not thereafter re- 
cover subsequently accruing rent. Feinberg v. Sutker, 35 
Ga. App. 505, 134 S. E- 173. 

§ 3712. Interfering with certain relations. 

Section Compared with Section 125 of Penal Code. — This 
section and the following section (section 3713) make it un- 
lawful to do the things therein specified, even though there 



would be no conflict with the employee's duty under his 
contract of employment, which is something quite different 
from enticing, persuading, or decoying the servant to desert 
his employer during his term of service, as prohibited by 
section 125 of the Penal Code. Therefore, the ruling as to 
the Constitutional invalidity of this section and the follow- 
ing section is not to be applied to that section of the Penal 
Code. Rhoden v. State, 161 Ga. 73, 78, 129 S. E. 640. 



CHAPTER 6 
Of Estates on Condition 
§ 3717. (§ 3137.) Precedent and subsequent. 

Section cited in Grantham v. Royal Insurance Co., 34 Ga. 

App. 415, 130 S. E. 589. 

§ 3721. (3141.) Effect of breach of condition. 

Necessity of Entry to Revest Estate. — The grantor in a 
deed containing a condition subsequent, upon a breach 
thereof, is not revested with the title until there has been 
an entry. Barnesville v. Stafford. 161 Ga. 588, 592, 131 S. 
E. 487. 



CHAPTER 7 

Of Tenancy in Common 

§ 3723. (§ 3143). Definition of tenancy in com- 
mon. 

Rule Stated — Trustee and Cestui Que Trust. — If a trustee 
acquires title to specific realty for his individual use and 
also for the use of his cestui que trust, the entire estate 
will be an estate in common, and the trustee and the cestui 
que trust will be tenants in common. Carmichael v. Citi- 
zens & Southern Bank, 162 Ga. 735, 134 S. E- 771. 

§3724. (§ 3144). Rights and liabilities of co- 
tenants. 

Action by Adverse Claimant against Cotenant. — Proof of 
title of tenants in common to land from which timber has 
been cut and removed by one of them, superior to the title 
of an adverse claimant, will entitle the tenant so cutting 
and removing the timber to its proceeds, as against such 
adverse claimant, notwithstanding the fact that the tenant 
cutting and removing the timber in such proceeding alleges- 
ownership of the land and timber in severalty. Horn v. 
Towson, 163 Ga. 37, 135 S. E. 487. 

§ 3727- (§ 3147). Accounting between coten- 
ants. 

Encumbrance of Estate — Cotenant's Superior Lien. — This 
section does not make the claim for indebtedness superior 
to a security deed made by the tenant in common individ- 
ually, purporting to convey his undivided interest in the 
realty to a third person as security for his personal obliga- 
tion. Carmichael v. Citizens & Southern Bank, 162 Ga.. 
735, 134 S. E. 771. 



CHAPTER 8 

Of Trust Estates, Trusts and Trustees, and 
Deeds to Interests in Property for its Im- 
provement 



ARTICLE 1 
Of Their Creation and Nature 
§ 3728, (§ 3148). Definition. 

Stated in Macy v. Hays, 163 Ga. 478, 485, 136 S. E- 517. 

§ 3733. (§ 3153). Express, etc. 

There can be no expressed trust unless it is created in; 
writing. Macy v. Hays, 163 Ga. 478, 485, 136 S. E- 517. 

Examples of application will be found in Macy v. Hays,. 
163 Ga. 478, 136 S. E. 517. 

§ 3736, (§ 3156). Execution of trusts. 

Illustration of Executory Trusts. — The following case is an 
example of an executory trust. Burton v. Patton, 162 Ga» 
610, 134 S. E- 603. 



[94] 



§ 3739 



PROCESSIONING 



§ 3823 



§ 3739. (§ 3159). Implied trusts. 

Money Must Be Paiid at or before Purchase. — For a case 
reiterating the principle declared in the cases under this 
catchline in the Georgia Code of 1926, see McDonald v. 
Dabney, 161 Ga. 711, 132 S. F. 547. 

When Member of Firm Holds Land for Other Members. 
— Where land is bought in whole or in part with money con- 
tributed by one of the members of a firm, and the legal title 
is taken in' the name of the other members, under an agree- 
ment that the latter is to hold the land for the use of 
the firm, an implied trust arises in favor of the partnership, 
and the members become equitable owners and equitable 
tenants in common of the land. McDonald v. Dabney, 161 
Ga. 711, 132 S. F- 547. 

Pleading — Sufficiency of Allegation. — For case wherein the 
allegations of the petition as amended, construed most 
strongly against the pleader, were held not to raise an im- 
plied trust upon the principles of this section, see Drake v. 
Drake, 161 Ga. 87, 129 S. F- 635. 

Evidence. — To engraft an implied trust upon an absolute 
deed by parol evidence, such evidence ought to be clear and 
satisfactory. McDonald v. Dabney, 161 Ga. 711, 132 S. F- 
547. 

Proof. — Ordinarily, where one person seeks to enforce an 
implied trust in land because it was paid for in part by his 
money and title thereto was taken in the name of another, 
he must prove the amount of his money so used; but where 
real estate is purchased with funds of a partnership, con- 
tributed by both members, and title is taken in the name of 
one of the members under an agreement that he is to hold 
the same for the use of the firm, this rule does not apply. 
The partner seeking to enforce the implied trust arising 
under these circumstances will not be required to show the 
specific amount of the funds contributed by him to the 
partnership capital which went into the purchase thereof. 
McDonald v. Dabney, 161 Ga. 711, 732, 132 S. F- 547. 

Paragraph Applied in Stonecypher v. Coleman, 161 Ga. 
403, 410, 131 S. F. 75; Manget v. Carlton, 34 Ga. App. 556, 
559, 130 S. F- 604; Carmichael v. Citizens, etc., Bank, 162 
Ga. 735, 134 S. F. 771. 

§ 3762. (§ 3179). Purchaser with notice. 

Notice of Trust Relationship — What Instrument Notice of. 

■ — A purchaser of land is charged with notice of recitals in 
the deed to his vendor, to the effect that the land was pur- 
chased with proceeds of the sale of trust funds. Carmichael 
v. Citizens, etc., Bank, 162 Ga. 736, 134 S. F- 771. Citing 
Cheney v. Rodgers, 54 Ga. 168; Hancock v. Gumm, 151 
Ga. 667, 107 S. F- 872, 16 A. L. R. 1003; Rosen v. Wolff, 
152 Ga. 578, 585, 110 S. F- 877. But he is not charged with 
notice of such recitals when contained in a deed by the 
vendor to another person, even though the deed purports to 
convey a part of the same general tract. The recital, in 
order to charge notice to the purchaser, must be in an in- 
strument constituting a link in his chain of title. Carmichael 
v. Citizens, etc., Bank, supra, citing. Hancock v. Gumm, 
supra. 

Innocent Purchaser from Purchaser with Notice. — If a 
grantee in the security deed, with notice of the equity of the 
claimants in the hands therein conveyed, transferred for 
value a note thereby secured to another without notice of 
such equity and who took the same in good faith, the latter 
acquired at least an equitable interest in such land as a 
purchaser, and holds such interest free from the secret 
equity of the claimants and the implied trust set up. First 
Nat. Bank v. Pounds, 163 Ga. 551, 136 S. F. 528. 

§ 3773. (§ 3189). Lien on estates for trust funds. 

When Funds of Estate Loaned. — When an administrator 
deposits with, or lends to, a firm of which he is a partner the 
funds of the estate which he represents, and the same are 
mingled with the funds of the firm and used in its business, 
upon the dissolution of the firm by the death of such partner 
(the administrator) the beneficiary of the trust fund thus mis- 
applied has a lien upon the assets of the firm in the hands 
of the surviving partner, superior to those of the firm's un- 
secured creditors. Miller & Co. v. Gibbs, 161 Ga. 698, 132 S. 
F. 626. 



ARTICLE 2 

Of Trusts and Trustees 

§ 3780. (§ 3196). When court will declare one a 
trustee. 

Section Quoted in McDonald v. Dabney, 161 Ga. 711, 731, 



132 S. E. 547. 



§ 3781. (§ 3197). Want of trustee. 

Appointment by Court for Educational and Religious 
Trusts. — For a case following, in a material manner, the 
principle enunciated in the first paragraph under this catch- 
line in the Georgia Code of 1926, see Dominy v. Stanley, 162 
Ga. 211, 133 S. E. 245. 

§ 3785. (§ 3201). Tracing assets. 

When Traceable May Always Follow. — The beneficiary of 
a trust may always follow the trust funds wherever they can 
be traced. Miller & Co. v. Gibbs, 161 Ga. 698, 707, 132 S. 
F. 626. 

Need Not Show Investment in Specific Property. — It is 
not indispensably necessary for the beneficiary, in order 
to trace trust funds, to show that they have been invested 
in specific property by the trustee or the person aiding the 
trustee in the misapplication of the funds. Miller & Co. v. 
Gibbs, 161 Ga. 698, 708, 132 S. F- 626. But it is necessary 
that they should be clearly traced and identified either in 
original or substitute form. Id. 

Same — Ober v. Cochran Reconciled. — In Ober & Sons Co. 
v. Cochran, 118 Ga. 396, 45 S. F- 382, 98 Am. St. Rep. 118, 
Mr. Presiding Justice Fish used some language which at 
first blush might seem to conflict with the rule as an- 
nounced by the Georgia Courts. That language is: "In or- 
der to recover a trust fund which has been misapplied by 
the trustee or person holding it in a fiduciary character, it 
must be clearly identified or distinctly traced into the 
property, fund, or chose in action which is to be made sub- 
ject to replace it." This does not mean that the trust fund 
can not be traced into the general property or funds of 
such trustee or person holding it in a fiduciary capacity. If 
the funds can be traced into the general property or funds 
of such trustee or person, the trust will be enforced. Mil- 
ler & Co. v. Gibbs, 161 Ga. 698, 709, 132 S. F. 626. 



SEVENTH TITLE 
Of Title and Mode of Conveyance 



CHAPTER l 
Of Title by Grant 



ARTICLE 3 
Processioning 

§ 3820- (§ 3246). Rules in disputed lines. 

When Construction Most Favorable to Grantee Prevails. — 

Where all other means of ascertaining the true construction 
of a deed fails, and a doubt still remains, that construction 
is rather to be preferred which is most favorable to the 
grantee. Holder v. Jordan Realty Co., 163 Ga. 645, 650, 136 
S. F. 907, citing Tyler on Boundaries, 119, 120; Harris v. 
Hull, 70 Ga. 831. 

Section Given in Charge. — As to a case sustaining a trial 
judge's charge to the jury involving a substantial portion 
of the section, see Cherokee Ochre Co. v. Georgia Ochre 
Co., 162 Ga. 620, 134 S. F. 616. 

§ 3821. (§ 3247). General reputation, when evi- 
dence. 

Binding on Grantees. — See Booker v. Booker, 36 Ga. App. 
738, 138 S. F- 251, for a case following the cases cited under 
this catchline in the Georgia Code of 1926. 

§ 3823. (§ 3249). Protest and appeal to superior 
court. 

Discrepancies in Dower Plat and Processioners. — Where it 
appeared conclusively that the surveyor for the procession- 
ers followed the line between the lands of the litigants as 
shown by the dower plat, any errors made upon the lines 
between other landowners, or any discrepancies in the 
dower plat and the plat made by the processioners, were 
immaterial and harmless. Groover v. Durrence, 36 Ga. App. 
543, 137 S. F. 299. 

Survey of Other Boundaries. — Where the only dispute is 
over the dividing line between two tracts of land, a survey 
of other boundaries is unnecessary. Groover v. Durrence, 
36 Ga. App. 543, 137 S. F- 299. 



[95] 



§ 3832 



NUNCUPATIVE WILLS 



§ 3926 



CHAPTER 2 
Of Title by Will 



ARTICLE l 

Of the Nature of Wills, by Whom and How Ex- 
ecuted 

§ 3832. (§ 3258). Power of testators. 

Providing for Creation of Corporation. — A testator under 
the laws of this State can provide by his will for the crea- 
tion by his executors of a corporation to which the executors 
shall convey the residue of his estate for the purpose of 
carrying on his general business. Palmer v. Neely, 162 Ga. 
767, 135 S. E- 90. 

§ 3840. (§ 3266). Insane persons. 

Monomania under This Section — Particular Type of Mania. 

—Mania is a form of insanity accompanied by more or less 
excitement, which sometimes amounts to fury. The person 
so affected is subject to hallucinations and delusions, and 
is impressed with the reality of events which have never oc- 
curred and things which do not exist, and his actions are 
more or less in conformity with his belief in these particu- 
lars. Hall v. Unger, 11 Fed. Cas. 261, 263 (No. 5949). This 
mania may extend to all objects; or it may be confined to one 
or a few objects, in which latter case it is called monomania. 
Dyar v. Dyar, 161 Ga. 615, 628, 131 S. E. 535. 

§ 3841. (§ 3267). Eccentricity, imbecility, etc. 

Rule of Evidence. — The section is a rule of evidence, and 
may be given in charge on an issue of devisavit vel non, 
without specially pleading such rule, where there is evi- 
dence to authorize such charge. Dyar v. Dyar, 161 Ga. 615, 
623, 131 S. E- 535. 

§ 3842. (§ 3268). Amount of capacity neces- 
sary. 

Standard of Mental Capacity — Charges. — In his charge to 
the jury the judge gave certain instructions which would 
probably lead the jury to conclude that the capacity to 
contract was identical with the capacity to make a valid 
will; and this identity does not exist. Such instructions 
were erroneous. Tarlton v. Richardson, 163 Ga. 553, 136 S. E- 
526. 

§ 3846. (§ 3272). Formalities of execution. 

II. SIGNATURE OF TESTATOR. 

Testator's Name Signed by Another. — Where a person's 
name is signed for him, at his direction and in his presence, 
by another, the signature becomes his own. The relation- 
ship of principal and agent is not thereby created, nor does 
the doctrine of such a relationship become involved. Neal 
v. Harber, 35 Ga. App. 628, 134 S. E- 347. 

Acknowledgment of Signature. — It is absolutely neces- 
sary that the attesting witnesses either actually see the tes- 
tator sign the instrument, or that the testator acknowledge 
his signature thereto either expressly or impliedly. Wood 
v. Davis, 161 Ga. 690, 693, 131 S. E- 885. 

§ 3851. (§ 3277.) Charitable devises. 

Execution within Ninety Days of Death. — Under this sec- 
tion a bequest to an educational institution by will which 
was executed less than 90 days before death is void. South- 
ern Industrial Inst. v. Marsh, lo Fed. (2d), 347. 



ARTICLE 2 
Of Probate and Its Effect 

§ 3864. (§ 3290.) Original will to remain in 
office. 

Section Cited in Young v. Certainteed Products Corp., 35 
Ga. App. 419, 133 S. E. 279. 

§ 3870. (§ 3296.) Admission of executor, etc. 

Origin. — This section had its origin in codification, and 
not in statute. Brown v. Kendrick, 163 Ga. 149, 154, 135 S. E. 
721. 

General Rule Stated. — It has been held that declarations 
made before its execution, by parties who afterwards become 
legatees under the will, are not admissible against the valid- 
ity of the will. Brown v. Kendrick, 163 Ga. 149, 154, 135 S. 
E. 721, citing 2 Schouler on Wills (6th ed), section 809; In 



re Ames, 51 Iowa, 596 (2 N. W. 408); Burton v. Scott, 3 
Rand. 399, 407; Thompson v. Thompson, 13 Ohio St. 356, 363. 
Executor Who Is Propounder and Legatee.— See Brown v. 
Kendrick, 163 Ga. 149, 154, 135 S. E- 721, which upholds the 
doctrine of the case under this catchline in the Georgia 
Code of 1926. 



ARTICLE 3 
Probate of Foreign Wills 



(§ 3299.) What requisite if land de- 



§ 3873. 
vised. 

Sections 3873-3880 Explained.— Under sections 3873-3880 a 
foreign will can be probated, and Georgia property willed 
thereunder can be administered, only by such resident ex- 
ecutor as may be named therein, or, if none, by a resident 
administrator with the will annexed, appointed at the in- 
stance of any heir, legatee, distributee, devisee, or creditor 
of the testator. The purpose and effect of the act of 1894, 
now incorporated in these sections, is not only to require 
the domestic probate of foreign wills before Georgia prop- 
erty can be administered thereunder, but also to prohibit 
such probate and the administration of Georgia property 
willed thereunder by any person other than a resident exec- 
utor or a resident administrator with the will annexed, 
selected and appointed as therein provided, to the exclusion 
of the executor therein named or any administrator with the 
will annexed appointed elsewhere. League v. Churchill, 36 
Ga. App. 681, 137 S. E- 800. 



ARTICLE 5 
Of Devises and Legacies 

§ 3896. (§ 3320.) Effect of assent. 

Effect of Assent Where Debts Made Permanent to Will. — 

Where executors, directed to carry out business ventures 
of testator, incurred debts pursuant to will, they could not 
thereafter interfere with rights of creditors by assenting to 
devises or legacies. Holt v. Daniel Sons & Palmer Co., 
8 Fed. (2d), 700. 

§ 3900. (§ 3324.) Intention of testator. 

I. IN GENERAL. 
When May Have Effect as It Stands. — In the instant case 
the trial judge did not err in rejecting parol evidence tend- 
ing to show that the testator instructed the scrivener to so 
draw the will as to give to his brother and sister an es- 
tate in remainder in the property real and personal given 
his wife for life or widowhood under his will, when the will, 
as it stands, may have effect. Hill v. Hill, 161 Ga. 356, 359, 
130 S. E. 575. 

§ 3906. (§ 3330.) Lapsed legacies. 

"Execute" Synonymous with "Made." — The word "exe- 
cuted" in the phrase "when the will is executed," as used 
in the section is synonymous with the word "made." Mac- 
Intyre v. McLean, 162 Ga. 280, 133 S. E. 471. 

§ 3910. (§ 3334.) Election. 

Renouncing Inconsistent Rights. — For a case following the 
doctrine embodied in the note under this catchline in the 
Georgia Code of 1926, see Robinson v. Ramsey, 161 Ga. 1, 
10, 129 S. E. 837. 

§ 3913. (§ 3337.) Devise changed from real 
to personal property, and vice versa. 

Proceeds of Realty Treated as Personalty. — On the theory 
of equitable conversion, the proceeds of real estate sold un- 
der a power of sale conferred by the will of a decedent are 
usually regarded as personal assets of the estate. Brown 
Guano Co. v. Bridges, 34 Ga. App. 652, 655, 130 S. E. 695, 
citing 11 R. C. L. 120. 



ARTICLE 7 
Of Nuncupative Wills 

§ 3925. (§ 3349.) Nuncupative wills, when 
good. 

Cited and partially stated in Felker v. Taylor, 162 Ga. 
433, 134 S. E- 52. 

§ 3926. (§ 3350.) When proved. 

Partially Stated in Felker v. Taylor, 162 Ga. 433, 134 S. 
E. 52. 



[96] 



§ 3929 



DISTRIBUTION, ADVANCEMENTS, AND YEAR'S SUPPORT 



§ 4052 



CHAPTER 3 
Of Title by Descent and Administration 



ARTICLE 1 

Of Inheritable Property and the Relative Rights 

of the Heirs and Administrator 

§ 3929. (§ 3353.) Descent to heirs. 

Realty— Equitable Estate Therein.— When the father of 
the plaintiffs died intestate, holding possession of lands 
under bonds for title with a part of the purchase-money 
paid, he had a beneficial interest or equitable estate therein. 
Upon his death this interest or estate descended to his heirs 
at law. Stonecypher v. Coleman, 161 Ga. 403, 409, 131 S. 
E. 75. 

§ 3931. (§ 3355.) Rules of inheritance. 

Wife "Heir" of Husband. — The widow of a deceased per- 
son is not, strictly speaking, an heir at law of her husband. 
Haddock v. Callahan Grocery Co., 163 Ga. 204, 135 S. E- 747. 



ARTICLE 2 
Of Administration 



SECTION l 

Different Kinds of Administrators and Rules for 
Granting Letters 

§ 3943. (§ 3367.) Rules for granting letters. 

Sister's Rights Prior to Nieces and Nephews.— Where a 

man died intestate leaving no wife nor any relatives except 
one sister and the children and grandchildren of four de- 
ceased sisters and one .deceased brother, all said relatives 
being sui juris and qualified to administer on the estate, the 
person selected in writing by the sister of the intestate 
was entitled to letters of administration in preference to 
the person selected in writing by a majority of the children 
of the intestate's deceased sisters and brother, although these 
constituted a majority both numerically and in point of in- 
terest. Dawson v. Shave, 162 Ga. 126, 132 S. E. 912. 



SECTION 3 

The Appointment of Administrators, Their Bond 

and Removal 

§ 3972. (§ 3396.) Bond of administrator. 

Liability of Administrator and Sureties. — The condition 
requires the administrator to account for all the money and 
property belonging to the estate he administers and coming 
into his hands as such administrators, and to distribute 
such money and the proceeds of such property in accordance 
with law. The sureties on the bond of such an admin- 
istrator are liable for any breach of the condition of the 
bond, including any failure of the administrator to discharge 
faithfully his duty in collecting and preserving and distribut- 
ing the assets of the estate. Ellis v. Geer, 36 Ga. App. 519, 
137 S. E. 290. 

§ 3974. (§ 3398.) Suit on bonds. 

Liability Joint and Several. — The obligation of an admin- 
istrator and the sureties on his bond is joint and several. 
Ellis v. Geer, 36 Ga. App. 519, 137 S. E. 290. 

Suits against Sureties Alone. — For a case following cases 
under this catchline in the Georgia Code of 1926, see Ameri- 
can Surety Co. v. Macon Savings Bank, 162 Ga. 143, 147, 132 
S. E. 636. 

Compared with Section 3054. — In American Surety Co. v. 
Macon Savings Bank, 162 Ga. 143, 147, 132 S. E. 636, it was 
said to be manifest, by a comparison of the two sections 
[this section and section 3054] that while the language used 
in each is somewhat different, the purpose of the codifiers 
was the same. 



SECTION 5 
Of Managing the Estate and Paying the Debts 

§ 4004. (§ 3428.) Compromises by adminis- 
trator. 

Provisions Must Be Followed. — An agreement by a guard- 



ian to compromise an indebtedness due to the ward is in- 
valid in the absence of a compliance by the guardian with 
any of the provisions of this and the two following sections. 
Nix v. Monroe, 36 Ga. App. 356, 136 S. E- 806. 

§ 4005. (§ 3429.) May make compromise. 

Provisions Must Be Followed. — See same catchline under 
section 4004. 



(§ 3430.) Trustee may compromise 



§ 4006. 
claims. 

Requirements of Section Requisite to Compromise. — See 

note "Provisions Must Be Followed" under section 4004. 



SECTION 7 
Of Administrator's Sale 
§ 4033. (§ 3457.) Property held adversely. 

Exception to General Rule. — Where an administratrix and 
her attorney knew that certain land was being held adversely 
to the estate and that the heir in possession had actually 
filed his claim thereto on the very day of the sale and just 
before the sale, and they concealed this fact, then such pos- 
session held adversely to the estate by a third person and 
his filing of a claim would constitute such fraud as would be 
relievable in equity, and would prevent the application of 
the doctrine of caveat emptor. Dukes v. Bashlor, 162 Ga. 403, 
407, 134 S. E. 98. 



SECTION 8 

Of Distribution, Advancements, and Year's 
Support 

§ 4041. (§ 3465.) Year's support of family. 

EDITOR'S NOTE AND GENERAL CONSIDERA- 
TIONS. 



I. 



Effect of Prior Deed to Defraud Creditors. — A deed made 
to defraud creditors, though void as to them, is good be- 
tween the grantor and the grantee, and the former after 
executing such deed has no title to the property thereby con- 
veyed; and thereafter the same can not be set apart as a 
year's support for his widow. McDowell v. McMurria, 107 
Ga. 812, 33 S. E. 709; Bank v. Powell, 163 Ga. 291, 135 S. 
E- 922. 

VI. NATURE AND AMOUNT OF PROPERTY. 

Kind of Property Assignable. — The year's support provided 
for under this section must be set apart "from the estate" 
of the deceased husband or father. Summerford v. Gilbert, 
37 Ga. 59; Bank v. Powell, 163 Ga. 291, 135 S. E. 922. 

§ 4042. (§ 3466.) Support continued, when. 

Where Executor Has Made Advances. — Where a widow 
consumed property of the estate of her deceased husband as 
a support and accepted advances from the executor for that 
purpose, and where these transactions occurred prior to the 
grant of a first year's support and might have been pleaded 
in defense thereto, they can not be shown in defense to an 
application by her for a second year's support. Hill v. Hill, 
36 Ga. App. 327, 136 S. E- 480, citing Fulghum v. Fulghum, 
111 Ga. 635, 36 S. E. 602, 37 S. E- 774; Wood v. Brown, 121 
Ga. 471, 49 S. E- 295. 

Pending Litigation. — Where an estate being administered 
under a will is kept together for a longer period than twelve 
months by a suit of the executor for the construction of the 
will (Hill v. Hill, 161 Ga. 356, 130 S. E- 575), and not by 
any fault of the testator's widow, the widow, if there are 
no debts, will ordinarily be entitled to support from the es- 
tate for each year that it is thus kept together. . Hill v. 
Hill, 36 Ga. App. 327, 136 S. E- 480. 

§ 4052. (§ 3474.) Advancements. 

Advancements Claimed Only in Cases of Intestacy. — In this 
State it is only in cases of intestacy that parties can claim 
advancements or be compelled to account for them. Robin- 
son v. Ramsey, 161 Ga. 1, 4, 129 S. E- 837, citing Huggins 
v. Huggins, 71 Ga. 66. 

Advancements Distinguished from Debts. — An advancement 
differs from a debt in that there is no enforceable liability 
on the part of the child to repay during the lifetime of the 
donor or after his death, except in the way of suffering a 
deduction in his portion of the estate. Robinson v. Ramsey, 
161 Ga. 1, 6, 129 S. E- 837. 

Same — Example. — In a will the term used by the testator, 



Ga— 4 



[97] 



§ 4067 



PRIVATE SALES 



§ 4135 



that each of certain children "owes the estate" a named 
sum of money, without any direction that this debt shall be 
treated as an advancement, fixes the status of the transac- 
tion as one of debts, and "debt" is not synonymous with 
"advancement." Robinson v. Ramsey, 161 Ga. 1, 129 S. F. 
837. 



SECTION 9 

Of Commissions and Extra Compensation, and 
Expense of Giving Bond 

§ 4067. (§ 3489.) Extra compensation. 

Executor Must Show Nature of Services. — Where an exec- 
utor claims compensation for extra services, the nature, 
character, extent, and value of such services must be satis- 
factorily proved by him; and in the absence of such show- 
ing, the refusal of the lower court to approve an exception 
to the auditor's finding of fact that the executor rendered 
no extra services will not be reversed where it appears that 
another finding of the auditor allows the executor compen- 
sation for all extra services so proved by the evidence. 
Clements v. Fletcher, 161 Ga. 21, 129 S. F- 846. 

Order Presumably Valid. — The order of the ordinary, al- 
though not conclusive on the parties in interest, furnishes 
at least prima facie evidence that the executor was entitled 
to the amount. Clements v. Fletcher, 161 Ga. 21, 47, 129 S. 
F- 846. 

§ 4069. (§ 3491.) Forfeiture of commissions. 

In General. — It can not be said as a matter of law that an 
executor forfeits all compensation by reason of his neglect 
or misconduct in the administration of an estate. Under 
the evidence and facts of the case, it was a question of fact 
to be determined in the first instance by the auditor, and in 
the second instance upon exception to such finding by the 
judge. Clements v. Fletcher, 161 Ga. 21, 51, 129 S. F. 846, 
citing Adair v. St. Araand, 136 Ga. 1, 70 S. F. 578. 

Relief from Forfeit — When Will Provides Compensation. — 
Where the will provided for reasonable compensation to the 
executor instead of commissions, the order of the ordinary 
would relieve the executor from forfeiture of such compen- 
sation by reason of such failure to make returns. Clements 
v. Fletcher, 161 Ga. 21, 129 S. F- 846. 



CHAPTER 4 
Of Title by Contract 



ARTICLE 1 
Of Private Sales 
§ 4106. (§ 3526.) Essentials of a sale. 

Consent of Parties — Double Agency. — In a suit in trover, 
it indisputably appearing that when the property sued for 
was turned over by the agent of the plaintiff to himself as 
the agent of the defendant it was without the knowledge or 
consent of either principal, and with no further purpose or 
intent than that the principals might thereafter agree upon 
a sale and the terms of a sale as between themselves, the 
transaction did not meet the requirements of a sale. Wil- 
lingham Stone Co. v. Whitestone Marble Co., 36 Ga. App. 
230, 136 S. F. 180. 

Completed Sale.— See Hatchett v. State, 34 Ga. App. 134, 
128 S. F- 687, affirming the second paragraph under this 
catchline in the Georgia Code of 1926. 

§ 4113. (§ 3533.) What is fraud. 

Misrepresentation. — In the forum of conscience a misrepre- 
sentation of the first kind mentioned in this section is of 
deeper dye than one of the latter kind; but in the forum of 
law both constitute fraud, the former positive fraud, and 
the latter legal fraud. Gibson v. Alford, 161 Ga. 672, 683, 132 
S. F- 442. 

§ 4117. (§ 3537.) Possibility can not be sold. 

Futures. — See catchline "Cotton Futures" under section 
4256. 

§ 4119. (§ 3539.) Agent in possession and 
with apparent right to sell. 

Illustrations. — See Pilcher v. Enterprise Mfg. Co., 36 Ga. 
App. 760, 138 S. F- 272, holding substantially the same as 

[9 



the second paragraph under this catchline in the Georgia 
Code of 1926. 

§ 4120. (§ 3540.) Purchaser without notice, 
protected. 

Purchaser from Fraudulent Grantee. — Where property was 
conveyed to defraud creditors and the grantee sold to a bona 
fide purchaser, the latter is protected under this section and 
section 4535 although the grantee is not a "vendee" as the 
word is used in this section. Bank v. Wheeler, 162 Ga. 635, 
134 S. F. 753. 

Quoted in Pilcher v. Enterprise Mfg. Co., 36 Ga. App. 760, 
138 S. F. 272. 

§ 4122. (§ 3542.) Deficiency in sale of lands. 

III. SALE BY TRACT OR ENTIRE BODY. 

Number of Acres Descriptive Merely. — See Holliday v. 
Ashford, 163 Ga. 505, 136 S. F- 524, holding substantially the 
same as the paragraph under this catchline in the Georgia 
Code of 1926. 

§ 4124. (§ 3544.) Purchaser losing land, 
rights of. 

Quoted in Holliday v. Ashford, 163 Ga. 505, 136 S. F- 524. 



§ 4125. 
rial. 



(§ 3545.) Delivery of goods essen- 



III. CONSTRUCTIVE DELIVERY. 



B. Delivery of Bill of Lading and Warehouse Receipts. 

Warehouse Receipts. — See Continental Trust Co. v. Bank, 
162 Ga. 758, 134 S. F. 775, quoting the second paragraph un- 
der this catchline in the Georgia Code of 1926. 

§ 4130. (§ 3550.) Purchase-price, when due* 

Cash Sale Presumed. — See Freeman v. Stedham, 34 Ga. 
App. 143, 128 S. F. 702, affirming the first sentence in this 
paragraph under the same catchline in the Georgia Code 
of 1926. 

§ 4131. (§ 3551.) Remedy of seller on de- 
fault of buyer. 

I. GENERAL CONSIDERATION. 

Action on Open Account. — A suit "on open account" can 
not by amendment be changed into a suit under this section. 
Butler v. Crown Cork, etc., Co., 34 Ga. App. 28, 128 S. F. 15. 

Objection as to Time of Shipment. — In a suit brought by 
the seller after he has sold the goods for the buyer under 
this section the buyer will not be heard then to raise for the 
first time the issue that the shipment was not made in strict 
compliance with the contract as to time. Cobb Lumber Co. 
v. Sunny South Grain Co., 36 Ga. App. 140, 135 S. F- 759. 

IV. STORING GOODS FOR VENDEE. 

Waiver. — Where a purchaser notifies the seller to cancel 
the order, but the seller, refusing to accept such tender of 
breach, thereafter delivers the goods to a carrier, and the 
purchaser, after their arrival, refuses acceptance, and the 
seller proceeds to store them for the purchaser and brings 
suit on the contract for the purchase price, such a mere 
ineffective tender of delivery on the part of the seller would 
not amount to a waiver on his part of his right to such a 
procedure under this section, but he is still entitled to sue 
not on open account for goods sold and delivered, but upon 
the contract for the purchase price of the goods thus re- 
tained by the purchaser. Fdison v. Plant Bros. & Co., 35 
Ga. App. 683, 134 S. F. 627. 

§ 4135. (§ 3555.) Implied warranty. 

I. GENERAL CONSIDERATION AND WARRANTY 
OF TITLE. 

Stipulation against Parol Alteration. — Because a written 
contract of sale stipulates that it covers all the agreements 
between the purchaser and seller, and that it can not be al- 
tered or modified in any manner except by agreement in 
writing of its "officers, such stipulation does not prevent the 
purchaser from setting up the implied warranty of the law. 
Colt Co. v. Bridges, 162 Ga. 154, 132 S. F- 889. 

III. EXPRESS WARRANTY AS EFFECTING IM- 
PLIED WARRANTY. 

Express Warranty Excludes Implied One— Scope of Express 
Warranty Important. — An express warranty may or may 
not exclude the implied warranty which the law attaches to 
all contracts of sale, the exclusion of this implied warranty 
being dependent upon the scope and terms of the express 
warranty. Colt Co. v. Bridges, 162 Ga. 154, 132 S. F- 889. 

Exclusion Not in Every Feature of Contract. — See Colt 

8] 



§ 4136 



CONVEYANCES OF TITLES 



§ 4190 



Co. v. Bridges, 162 Ga. 154, 132 S. E. 889, affirming the 
holding of the first paragraph of this section in the Georgia 
Code of 1926. 

§ 4136. (§ 3556.) Effect of breach. 
I. GENERAL CONSIDERATIONS. 

Partial Failure of Consideration. — An action for damages 
for a breach of the implied warranty under subsection 2, 
section 4135 lies where there is a partial failure of considera- 
tion. Boone v. Lewis, 35 Ga. App. 478, 133 S. E- 653. 

III. DAMAGES. 

Measure of Damages. — The measure of damages is the 
difference between the price paid for the goods and their 
actual value as reduced by their defective condition. Boone 
v. Lewis, 35 Ga. App. 478, 133 S. E- 653. 

See Colt Co. v. Mallory, 35 Ga. App. 289, 133 S. E- 55, 
affirming the holding of the first sentence in paragraph 4 
under this catchline in the Georgia Code of 1926. 

Same — Travelling Expenses. — Expense properly and reason- 
ably incurred by the plaintiff in travelling in order to 
lessen the loss was a proper item of damages. Boone v. 
Lewis, 35 Ga. App. 478, 133 S. E. 653. 

Same — Testimony of Vendee as to Value of Goods. — Where 
a defendant testified that goods were of no value to him in 
the condition they were in, this did not show that they were 
not of some value. Colt Co. v. Mallory, 35 Ga. App. 289, 
291, 133 S. E. 55. 

§ 4144. (§ 3564.) Essentials of gift. 

Present Intention. — See Clark v. Bridges, 163 Ga. 542, 136 
S. E- 444, quoting the sentence in the paragraph under the 
same catchline in the Georgia Code of 1926. 

Transfer of Stock. — Under sections 4144-4147, transfer of 
stock to educational institution, without delivery of certifi- 
cates, did not constitute a gift; transfer being only prima 
facie evidence of delivery. Southern Industrial Inst. v. 
Marsh, 15 Fed. (2d), 347. 

§ 4147. (§ 3567.) Delivery. 

Delivery between Members of Same Family. — The rule as 
to delivery is not so strictly applied to transactions be- 
tween members of a family living in the same house, the 
law in such cases accepting as delivery acts which would 
not be so regarded if the transaction were between stran- 
gers living in different places. Harrell v. Nicholson, 119 
Ga. 458, 460, 46 S. E. 623; Williams v. McElroy, 35 Ga. App. 
420, 133 S. E- 297. 

Deposit Subject to Checking Account. — A deposit made in 
a bank by a parent for the benefit of a child but subject to 
be drawn out at any time by either is not a gift under this 
and the other sections of this chapter. Clark v. Bridges, 
163 Ga. 542, 136 S. E. 444. 

Renunciation of Dominion — Question for Jury. — Where a 
husband as donor had parted absolutely with his title in 
favor of his wife, and the subject-matter of the gift (cer- 
tain promissory notes) remained in a box to which the wife 
carried the key, but which contained articles belonging to 
each, and to which each continued to have the right of ac- 
cess, it became a question of fact for the jury to determine 
whether, under the circumstances, the donor had in fact re- 
linquished control by the gift. Williams v. McElroy, 35 Ga. 
App. 420, 133 S. E- 297. 

§ 4150. (§ 3570.) Presumption of gifts [of 
personal property] . 

Question for Jury. — Gross v. Higginbotham, 34 Ga. App. 
549, 130 S. E- 371, affirms the holding under this catchline 
in the Georgia Code of 1926. 

§ 4154. (§ 3574.) Donatio causa mortis. 

Essentials. — Under this section, a gift causa mortis must 
be intended to be absolute only in the event of death. 
Southern Industrial Tnst. v. Marsh, 15 Fed. (2d), 347. 



CHAPTER 5 
Of Title by Escheat and Forfeiture 
§ 4155. (§ 3575.) Escheat. 

Interest of State. — Where it is alleged that a deceased left 



no heirs and that the will made by him was false and 
fraudulent it was held that the State had sufficient interest 
in the property to file a petition demanding probate of the 
will and to caveat the probate since otherwise the State 
would have no way of declaring the property escheated. 
Oslin v. State, 161 Ga. 967, 132 S. E- 542. The dissenting 



opinion to this case by Russell, C. J., contains a discussion 
of the history of escheats. — Ed. Note. 



CHAPTER 6 
Of Title by Prescription 
§ 4164. (§ 3584.) Adverse possession. 

When Possession Adverse. — Where a vendor sold property 
to his wife and continued in possession without making her 
a deed thereto as he promised, he does not hold adversely 
to her. McArthur v. Ryals, 162 Ga. 413, 134 S. E- 76. 



(§ 3587.) Possession extends to what 



§ 4167. 
bounds. 

Meaning of "Contiguous." — The word "contiguous," as used 
in this section means to touch. Standard Dictionary; Web- 
ster's New International Dictionary. Accordingly, tracts of 
land which corner with one another are contiguous. Morris 
v. Gibson, 35 Ga. App. 689, 134 S. E- 796. 

When One Deed Conveys Several Tracts. — The same deed 
may make independent conveyances of two or more separate 
and non-contiguous tracts of land. In such a case actual 
possession of one or more of such distinct entities as thus 
conveyed will not be extended by construction to include 
them all. But where the several tracts designated as being 
included by the terms of the conveyance actually adjoin or 
corner, so as to in fact constitute a single parcel, actual 
possession of a portion of the premises thus conveyed will 
be extended by construction to include the entire premises. 
Morris v. Gibson, 35 Ga. App. 689, 134 S. E. 796. 

§ 4168. (§ 3588.) Possession for twenty years 
gives title. 

Other Titles Extinguished. — "When an adverse possessor 
has held for the requisite period and his prescriptive title 
ripens, it extinguishes all other inconsistent titles and it- 
self becomes the true title." Powell on Actions for Eand, 
459, sec. 349. Danielly v. Eowe, 161 Ga. 279, 130 S. E. 687. 

§ 4175. (§ 3595.) Other exceptions. 

Period of Non- Representation — No Deduction after Five 

Years.— "If the estate remains unrepresented for more than 
five years, no deduction at all from the adverse possessor's 
term will be allowed in favor of the personal representative." 
Powell's Actions for Eand, 448. Danielly v. Lowe, 161 Ga. 
279. 130 S. E- 687. 



CHAPTER 7 
Of Conveyances of Titles 



ARTICLE 1 
Generally 

§ 4179. (§ 3599.) Requisites of a deed. 

Consideration — Inquiry into — When Permissible. — See Sikes 
v. Sikes, 162 Ga. 302, 133 S. E. 239, affirming the holding in 
the first paragraph under this catchline in the Georgia Code 
of 1926. 

§ 4182. (§ 3602.) Form of deed. 

From sufficient in Crider v. Woodward, 162 Ga. 743, 135 S. 
E. 95. 

§ 4187. (§ 3607.) Inconsistent clauses in 
deed. 

In General.— The holding of Thompson v. Hill, 137 Ga. 308, 

73 S. E. 640, as set out under this catchline in the Georgia 

Code of 1926, is affirmed in Clark v. Robinson, 162 Ga. 395, 

134 S. E- 72, and Holder v. Jordan Realty Co., 163 Ga. 645, 
136 S. E. 907. 



§ 4190. (§ 3610.) Ancient deed. 

Jury to Pass on Genuineness. — Where such a deed as de- 
scribed in this section is apparently genuine, has come from 
the proper custody, and is shown not to be inconsistent with 
possession, or if other corroboration appears, it should be 
admitted in evidence as prima facie established. But the 
jury has the right to finally pass on its genuineness, after 
hearing all the testimony pro and con. Gaskins v. Guthrie, 
162 Ga. 103, 132 S. E- 764. 

[99] 



§ 4198 



ILLEGAL AND VOID CONTRACTS 



§ 4252 



ARTICLE 3 

Of Registration 

§ 4198. (§ 3818.) Deeds, when and where re- 
corded. 

Applied in Dorsey v. Clower, 162 Ga 299, 133 S. E- 249. 

§ 4212. (§ 3630.) Copy when evidence. 

Proof of Inquiry as to Loss of Original Deed Requisite. — 

In order to admit in evidence a certified copy of a registered 
deed, it must be shown that the original has been de- 
stroyed, or that it was lost or inaccessible, or that due dili- 
gence has been exercised in endeavoring by proper search 
and inquiry to ascertain in whose custody it is. Beall v. 
Francis, 163 Ga.i 894, 896, 137 S, E. 251. 



Law 



., EIGHTH TITLE 



On 



Of Contracts 
HAPTER 1 

m 



rgia 




§ 4219. (§ 3634.) Specialty. 

An insurance policy under seal constituted a "'specialty,*' 
~Under sections 4219, 4359, such that there could be no re- 
covery of money paid under it, on ground of false repre- 
sentations, as long as it remained uncanceled, and suit to 
• cancel and to recover such payment was not barred on 
: ground that complainant had adequate and complete remedy 
^at law. Massachusetts Protective Ass'n v. Kittles, 2 Fed. 
(2d), 211. 

§ 4222. (§ 3637.) Essentials of a contract. 

Subject Matter Not in Existence. — If a contract amounts 
to an executory agreement for a bona fide sale of property 
of a character such as under the circumstances and under 
the law can be legally made the subject matter of a sale, 
and is not merely speculative in character, the parties may 
be bound, although the subject matter of the sale has no 
existence at the time the agreement is entered upon, and 
the seller expects to comply with his contract by subse- 
quently acquiring the property thus agreed to be conveyed. 
Parks v. Washington, etc., R. Co., 35 Ga. App. 635, 133 S. 
E. 634. Citing Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 201, 
37 S. E. 485, 81 Am. St. R. 28; Jones v. Fuller, 27 Ga. App. 
84, 107 S. E- 544; Gilbert v. Copeland, 22 Ga. App. 753, 97 S. 
E. 251. 

§ 4224. (§ 3639.) Conditions precedent and 
subsequent. 

Example of Condition Subsequent. — Where the commis- 
sioners of a drainage district, enter into a collateral agree- 
ment with a contractor by the terms of which such com- 
missioners agree "to be personally responsible for the money 
of the district until money can be secured by the issuing 
and sale of bonds of said district or until the district se- 
cures money from other sources," such collateral agreement 
is based upon a condition subsequent; and upon the fulfil- 
ment of the condition subsequent all liability under such 
agreement, ipso facto, ceases. Board v. Williams, 34 Ga. 
App. 731, 753, 131 S. E. 911. 



§ 4230. (§ 3645.) Assent is essential to contract. 

Mutual Assent — Bank and Depositor. — Where a bank de- 
livered to a depositor, money, neither he nor the bank in- 
tending that it should be accepted by him in payment of 
the amount due to him, but with the expectation on the 
part of the bank that he should deliver the money to a third 
party, the depositor was not paid and the bank continued 
to be his debtor. Davis v. Farmers, etc., Bank, 36 Ga. App. 
415, 419, 136 S. E. 816. 

Unilateral Contracts. — An agreement by one of the parties 
to a controversy to accept a certain sum of money in settle- 
ment, without any promise by the other to pay it, does not 
render the latter liable therefor, although the agreement is 
in writing and signed by both of the parties. Manget v. 
Carlton, 34 Ga. App. 556, 130 S. E. 604. 

Illustrations — Note Accompanying Application for Insur- 
ance Polity. — An application for a policy of insurance must 
be accepted within a reasonable time, or else it may be 
treated by the applicant as having been rejected. Home 
tns. Co. v. Swann, 34 Ga. App. 19, 128 S. E. 70. 

Same — Same — Reasonable Time. — While the period consti- 

[100] 



tuting such a reasonable time may, as a general rule, be a 
matter for determination by the jury under all the evidence, 
yet where the insurance company appears to have remained 
silent for approximately six months after receipt of the ap- 
Dlication, the presumption that it was rejected becomes 
conclusive. Home Ins. Co. v. Swan, 34 Ga. App. 19, 128 S. 
E. 70. 



CHAPTER 3 
Of the Consideration 
§ 4241. (§ 3656.) Nudum pactum. 

Time for Acceptance — Insurance Policy. — Where a person 
applies for a policy of insurance, accompany his applica- 
tion with a note to cover the premium, yet no policy of in- 
surance was ever delivered or tendered to him by or for 
the company and was a nudum pactum, the note was with- 
out any consideration to support it. Home Ins. Co. v. 
Swann, 34 Ga. App. 19, 128 S. E. 70. 

§ 4242. (§ 3657.) Valid consideration. 

Concurrence of Benefit and Injury. — A consideration need 
not be a benefit accruing to the promisor. Porter Fertilizer 
Co. v. Brewer, 36 Ga. App. 329, 136 S. E. 477. 

Past and Future Support. — A deed in consideration of one 
dollar actually paid, and of past support of the grantors by 
the grantees, and an agreement on the part of the grantees 
for the future support of the grantors, is not a voluntary 
conveyance, but one based upon a valuable consideration. 
Dorsey v. Clower, 162 Ga. 299, 131 S. E. 249. 

§ 4243. (§ 3658.) Good and valuable considera- 
tions. 

Caring for Parents. — See note Past and Future Support 
under section 4242. 

§ 4250. (§ 3665.) Failure of consideration. 

Notes — When Receipt of Consideration Acknowledged. — 

Where a promissory note has been made, acknowledging re- 
ceipt of the consideration the receipt of part of considera- 
tion cannot be denied unless the admission and promise 
resulted from the mutual mistake of the parties or unlesi 
brought about by the mistake of one party knowingly taken 
advantage of by the other. Spells v. Swift & Co., 34 Ga. 
A.pp. 620, 130 S. E. 593, citing Bonds v. Bonds, 102 Ga. 
163, 29 S. E. 218 and Shelton & Co. v. Ellis, 70 Ga. 297, 301. 



CHAPTER 4 
Of Illegal and Void Contracts 
§ 4251. (§ 3666). Void contracts. 

Negotiable Instruments Given for Illegal Purpose. — See 

Editor's Note under section 4294(57). 

§ 4252. (§ 3667.) Attorney's fees in notes. 

II. GENERAL CONSIDERATIONS. 

Need Not Be in Writing. — There is no law requiring that 
a promise to pay attorney's fees shall be in writing in order 
to be enforceable under this section. Forsyth Mercantile Co. 
v. Williams, 36 Ga. App. 130, 135 S. E- 755. 

Waiver of Right. — See Bank v. Farmers State Bank, 35 
Ga. App. 340, 133 S. E- 307, quoting the holding under this 
catchline in the Georgia Code of 1926. 

Amount of Fees Collectible. — Where a note provided for 
10 per cent attorney's fees the defendant can not lessen his 
liability by setting up the fact that plaintiff actually con- 
tracted with his attorney for a less sum. Bank v. Farmers 
State Bank, 35 Ga. App. 340, 133 S. E. 307. 

III." NOTICE. 
B. Sufficiency of Notice. 
Notice naming a term preceding the term to which the 
suit is finally made returnable will not suffice. Russell v. 
Life Ins. Co., 134 Ga. App. 640, 130 S. E. 689. 



IV. THE RETURN DAY, PAYMENT AND 
FILING OF SUIT. 

Under the Federal equity rule 12, which requires the clerk 
of a federal court on the. filing of a bill to issue subpoena, 
returnable 20 days from the issuing thereof, such day is 
"return day" of such bill, within the meaning of this sec- 
tion. Perry v. Hancock Mut. Life Ins. Co., 2 Fed. (2d), 
250. 



§ 4256 



NEGOTIATION 



§ 4294(57) 



V. TRIAL. 
B. Evidence. 
Necessity of Proof — Implied Where Case in Default. — See 

State Mut. Life Ins. Co. v. Jacobs, 36 Ga. App. 731, 137 S. 
E. 905; affirming the holding given under this catchline in 
the Georgia Code of 1926. 

§ 4256. (§ 3671.) Gaming contracts. 

Cotton Futures. — A cotton futures contract, though it is 
condemned by section 4258, as unlawful, is not a gaming con- 
tract in the sense and meaning of this section, and the 
money paid upon such consideration may not be recovered 
back. Lasseter v. O'Neill, 162 Ga. 826, 135 S. E- 78. The 
history of these sections is thoroughly discussed in the 
opinion to this case. It should be noted that this decision 
practically overrules the cases cited under this catchline in 
the Georgia Code of 1926. The dissenting opinion of Hines, 
J., is based upon this and other considerations. Ed. Note. 

§ 4257. Dealing in futures prohibited. 

See note "Cotton Futures" under preceding section. 

In General. — In general a state Legislature may prescribe 
rules of evidence and may create presumptions of the ex- 
istence of a fact or fault from given facts, if there is really 
some connection between them in reason or experience, 
provided there is a fair opportunity for rebuttal allowed; 
but it may not enact that facts which it could not declare 
to be a crime, shall be sufficient, though only prima facie, 
evidence of one. This statute belongs to the former class, 
but even if such provisions are invalid they do not invali- 
date the body of the act. Fenner v. Boykin, 3 Fed. (2d), 
674, affirmed in 271 U. S. 240, 46 S. Ct. 492. 

Within Police Power of State. — A state statute prohibit- 
ing contracts for future delivery in all cases where margins 
are deposited is not unconstitutional as a deprivation of 
liberty or property without due process of law, but is with- 
in the police power of the state. Fenner v. Boykin, 3 Fed. 
(2d), 674, affirmed in 271 U. S. 240, 46 S. Ct. 492. 

Intent to Gamble Required. — This and the following sec- 
tions do not apply to contracts for future delivery, where 
there is an intent that the commodity bought shall actually 
be delivered, but only to transactions where it is the in- 
tent to gamble on the fluctuation of the market. Fenner v. 
Boykin, 3 Fed. (2d), 674, affirmed in 271 U. S. 240, 46 S. Ct. 
492. 

§ 4258. Contracts that are illegal. 

As to cotton futures contracts, see note under section 
4256. 

In General. — This section does not apply to gaming as re- 
ferred to in section 4256, and as defined in Dyer v. Benson, 
69 Ga. 609. Nor does it authorize suits to recover money or 
property after it has been paid over in transactions such as 
are described in the act. Lasseter v. O'Neill, 162 Ga. 826, 
833, 135 S. F- 78. Same case 36 Ga. App. 55, 135 S. F. 224. 

In accordance with the general rule where persons are in 
pari delicto in the violation of a positive law, this section 
-contemplates leaving the parties where it found them. Lasse- 
ter v. O'Neill, 162 Ga. 826, 833, 135 S. E- 78. 



CHAPTER 5 

Of Construction of Contracts 

§ 4266. (§ 3673.) Intention of parties must be 
sought. 

Deeds. See Hill v. Smith, 163 Ga. 71, 135 S. F- 423, hold- 
ing substantially the same as the cases in the first para- 
graph under this catchline in the Georgia Code of 1926. 

Section applied in Lanier v. Register, 163 Ga. 236, 135 S. 
F- 719; Miller v. First Nat. Bank, 35 Ga. App. 334, 132 S. F. 
783. 



§ 4267. (§ 3674.) Intention of one party known 
to the other. 

Section Applied in Slade v. Raines, 161 Ga. 859, 132 S. E. 



58. 

§ 4268. (§ 3675.) Rules of interpretation. 

Where Contract Ambiguous. — Where the description of 
land applies equally to several tracts, a latent ambiguity 
results, which may be explained by showing which one of 
the several tracts was claimed by the grantor. 2 Delvin 
on Real Fstate (3d ed.), 2026, section 1043. Petretes v. At- 
lanta Loan, etc., Co., 161 Ga. 468, 473, 131 S. E- 510. 

Section Applied.— Rogers -Morgan Co. v. Webb, 34 Ga. 
App. 424, 130 S. E. 78. 



Section Applied in Miller v. First Nat. Bank, 35 Ga. App. 
334, 335, 132 S. F- 783. 

Insurance Policy. — In accordance with this section, where 
an insurance policy required an inventory to be taken it was 
held that a list showing the cost price of the articles was 
sufficient and that the actual value was not required. Gold- 
man v. Aetna Ins. Co., 162 Ga. 313, 133 S. F- 741. 

Determined by Intention — Example. — In a contract where 
the date named was not fixed as a final and definite date 
for delivery, but the time of shipment could be accelerated or 
deferred at the will of the vendee, it could not reasonably 
be said that shipment on the particular date mentioned 
in the agreement was intended by the parties to be of the 
very essence of the contract. Cobb Lumber Co. v. Sunny 
South Grain Co., 36 Ga. App. 140, 135 S. E. 759. 

Contract of Employment. — Where an agency was estab- 
lished in order that the agent or servant might take a car 
to a certain place for the purpose of sale, provided that if 
he failed to sell it, he would have it back that night before 
the employer's garage was closed, time was of the very es- 
sence of the conditional employment; and the servant's au- 
thority and the master's liability were limited accordingly. 
Palmer v. Heinzerling, 34 Ga. App. 544, 130 S. E- 537. 



CHAPTER 6 
Negotiable Instruments 



ARTICLE 1 

Of Negotiable Papers and How Transferred 

§ 4276. (§ 3684.) Transfer of secured note car- 
ries security. 

Applicability to Security Deed. — See First Nat. Bank v. 
Pounds, 163 Ga. 551, 136 S. E. 528, quoting the second para- 
graph under this catchline in the Georgia Code of 1926. 



ARTICLE 3 
Of the Rights of Holders 
§ 4294(30). What constitutes negotiation. 

Effect of Transfer for Affection upon Necessity for In- 
dorsement.— See Moore v. Moore, 35 Ga. App. 39, 131 S. E. 
922, quoting the holding under this catchline in the Georgia 
Code of 1926. 



ARTICLE 4 
Negotiable Instrument in General 



SECTION 3 • 

Negotiation 

§ 4294(49). Transfer without indorsement; ef- 
fect of. 

Transfer for Love and Affection. — Neither under the N. I. 
L. nor under the law as it previously existed, does the 
legal title to a negotiable promissory note, payable to or- 
der, pass to a transferee for a consideration of love and 
affection only and not for value, except by indorsement 
upon the instrument itself or upon a paper attached to it. 
Such a transferee, therefore, acquires no legal title to the 
note by a separate transfer to him in writing executed by 
the payee but unattached to the note. Moore v. Moore, 35 
Ga. App. 39, 131 S. E- 922. 



§ 4294(57). Rights of holder in due course. 

Editor's Note. — In Commercial Bank v. Cohen, 34 Ga. 
App. 756, 131 S. E- 117, the court held that "a check given 
for whisky, being for an illegal consideration is void and 
therefore not enforceable even by an innocent purchaser of 
the check." This decision was based upon section 4286, which 
has now been superseded by the provisions of the N. I. L. 
It seems probable that the cause of action in the case re- 
ferred to arose prior to the adoption of the N. I. L. since 
by that law illegal consideration is not a valid defense 
against a holder in due course. 

And also in Howard v. Caldwell, 35 Ga. App. 366, 133 S. 
E- 284, it is stated that under section 4286 the only de- 

[101] 



§ 4294(65) 



PAYMENTS 



§ 4317 



fenses permissible against a bona fide holder of a promis- 
sory note are non est factum, gambling or immoral or il- 
legal consideration and fraud in the procurement. The 
court does not mention this section under which all but the 
first of these are no longer defenses against a holder in due 
course. 

Defense of Non Est Factum by Partner. — As against a 
bona fide holder the defense of non est factum set up by a 
member of a partnership in a suit upon a note signed by 
the firm amounts only to a denial of the factum of the 
partnership's execution of the note and cannot concern 
itself with restrictions upon the authority of the other part- 
ner. See Cooke v. Faucett, 35 Ga. App. 209, 132 S. E. 
268. This case was decided under section 4286 but it seems 
to apply equally to this section as the defense of non est 
factum is still available as against a holder in due course. 

The holder of an instrument as collateral is a holder in 
due course only to the extent of the debt secured. Wyche 
v. Bank, 161 Ga. 329, 130 S. F. 566. 



SECTION 5 
Liabilities of Parties 

§ 4294(65). Warranty where negotiation by 
delivery, etc. 

Warehouse Receipt. — In the recent case of Continental 
Trust Co. v. Bank, 162 Ga. 758, 764, 134 S. E. 775, constru- 
ing section 4277, it was held that the transferor of a cotton 
warehouse receipt impliedly warrants that the cotton repre- 
sented by such receipt is in existence at the time the re- 
ceipt is transferred. 



SECTION 8 
Discharge of Negotiable Instruments 

§ 4294(120). When persons secondarily liable 
on; discharged. 

Necessity for Consideration to Discharge. — See Gay v, 

Carpenter, 35 Ga. App. 768, 134 S. E- 803, affirming the hold- 
ing stated under this catchline in the Georgia Code of 1926. 
Retaking of Property by Seller. — A retaking of property 
by the seller, for the purpose of holding it until the pur- 
chaser, who is the maker of a note for it, has paid part of 
the purchase money, and a release of the property then to 
the purchaser, when such retaking in no wise increases the 
surety's risk, does not release the surety. Gay v. Car- 
penter, 35 Ga. App. 768, 134 S. F- 803. 



ARTICLE o 
Promissory Notes and Checks 

§ 4294(184). Promissory note defined. 

Agreement to Pay in Specifics. — All agreements to pay 
in specifics are presumed to be made in favor of the debtor, 
and he has the option of paying the debt either in specifics 
or in money amounting to the value of the specifics. Mob- 
ley v. Tufts, 36 Ga. App. 764, 765, 138 S. F- 272. 



CHAPTER 7 
Of Defenses to Contracts 



ARTICLE l 
Denial of the Contract 

§ 4296. (§ 3702.) Effect of alteration. 

Applied in Blaylock v. Walker County Rank. 36 Ga. App. 
377, 136 S. E. 924. 



§ 4299. (§ 3705.) Indorsement, etc., not to be 
proved. 

Stated in Pope v. Woolford Realty Co., 35 Ga. App. 284, 
134 S. F. 174. 

[102] 



ARTICLE 2 

Denial of the Obligation of a Contract, Either 

Originally or by a Subsequent Act of the 

Opposite Party 



§ 4301. (§ 3707.) Conditions. 

Applied in Rogers v. Southern Fertilizer, etc. 
Ga. App. 229, 136 S. E. 106. 



Co., 36 



§ 4304. (§ 3710.) Rescission. 

When Rescission Complete. — If, while an option to pur- 
chase rented premises was in force, it was, by mutual agree- 
ment between the parties, surrendered to the maker in full 
satisfaction and discharge of the several rent notes due him, 
the rent contract was effectually rescinded. Robinson v. 
Odom, 35 Ga. App. 262, 133 S. E- 53. 

§ 4305. (§ 3711.) Rescission for fraud. 

Opportunity of Party to Redress Wrong. — See Henderson 
v. Lott, 163 Ga. 326, 335, 136 S. E- 403, quoting the holding 
under this catchline in the Georgia Code of 1926. 

Contract Not Void. — See Henderson v. Lott, 163 Ga. 326, 
335, 136 S. E- 403, quoting the holding under this catchline 
in the Georgia Code of 1926. 

Time of Restoration. — See Henderson v. Lott, 163 Ga. 326, 
335, 136 S. E- 403; Gibson v. Alford, 161 Ga. 672, 132 S. E. 
442, stating substantially the holding under this catchline in 
the Georgia Code of 1926. 

Restitution — When Unnecessary. — Where an ex- husband 
fraudulently induced his ex- wife to accept a much less 
amount of alimony than she was entitled to under her judg- 
ments, it was not necessary to restore or affer to restore the 
amount of alimony which she received under the contract. 
Ellis v. Ellis, 161 Ga. 360, 365, 130 S. F. 681, citing *Farnell v. 
Brady, 159 Ga. 209, 125 S. E- 57. 

Effect of Recognition after Knowledge. — Where one is en- 
titled to rescind a contract on ground of fraud or false rep- 
resentations, and who has full knowledge of the material 
circumstances of the case, freely and advisedly does any- 
thing which amounts to a recognition of the transaction, or 
acts in a manner inconsistent with a repudiation of the 
contract, such conduct amounts to acquiescence, and, though 
originally impeachable, the contract becomes unimpeachable 
in equity. Gibson v. Alford, 161 Ga. 672, 132 S. E- 142. See 
also Home Ins. Co. v. Swann, 34 Ga. App. 19, 26, 128 S. E- 70. 

§ 4306. (§ 3712.) Without consent. 

Effect of Recognition after Knowledge. — See same catch- 
line under section 4305. 

Stated in Home Ins. Co. v. Swann, 34 Ga. App. 19, 26, 
128 S. E- 70. 



ARTICLE 3 

Of Payment, and Herein of Appropiration of 
Payments 

§ 4314. (§ 3720.) Bank-bills, checks, and notes, 
payment in. 

General Effect of Giving Check or Note — Acceptance of 
Offer.— The mailing of a check to the plaintiff on March 
27, including rent through March 31, in compliance with 
the express offer contained in the bill for rent presented by 
the plaintiff on March 27, would not of itself amount to an 
acceptance of the offer by noon of Mai-ch 30, as required by 
the terms of the offer. Williams-Thompson Co. v. Louis- 
ville, etc., R. Co., 35 Ga. App. 556, 558, 133 S. F. 633. 

§ 4316. (§ 3722.) Appropriation of payments. 

Direction by Wife of Debtor. — Directions as to the appli- 
cation of payments by the wife of the debtor, she not being 
the agent of the debtor, do not bind the creditor. Neal v. 
Harber, 35 Ga. App. 628, 134 S. E- 347. 

§ 4317. (§ 3723). Voluntary payments. 

Taxes — Recovery. — Where a corporation pays an alleged 
illegal occupation tax and it does not appear from the peti- 
tion that there was a provision for any penalty by arrest, fine, 
or imprisonment, or by seizure of property, or by molesta- 
tion of business, for failure to pay the license tax assessed 
the payment cannot be said to come under the exceptions in 
this section. Savannah v. Southern Stevedoring Co., 36 
Ga. App. 526, 137 S. F- 123. 



§ 4318 



PERIODS OF LIMITATION 



§ 4369 



ARTICLE 4 
Of Performance, and Herein of Tender 
§ 4318. (§ 3724.) Performance of contracts. 

Substantial Compliance. — Where an entire lighting plant, 
with the exception of a certain valve designated as "one 
iron, free gratis," was delivered within the time allowed 
under the contract and the seller notified the purchaser 
that such valve was not then in stock but would be subse- 
quently forwarded, and "it was shipped later by express," 
the jury were authorized to find that the seller had substan- 
tially complied with his obligation to deliver the entire 
plant within a reasonable time. Morgan v. Colt Co., 34 Ga. 
App. 630, 130 S. E. 600. 

§ 4322. (§ 3728.) Tender. 

Incomplete Tender Not within Section. — See Jeanes v. 
Atlanta, etc., Nat. Bank, 34 Ga. App. 568, 570, 130 S. E. 
353, holding the same as the second paragraph under this 
catchline in the Georgia Code of 1926. 



ARTICLE 5 

Accord and Satisfaction 

§ 4326. (§ 3732.) What is accord and satisfac- 
tion. 

Promise in Executory Agreement. — See Messenger Pub. 
Co. v. Overstreet, 36 Ga. App. 458, 137 S. E- 125, holding 
substantially the same as the first sentence under this catch- 
line in the Georgia Code of 1926. 



ARTICLE 6 

Of Pendency of Another Action, and Former 
Recovery 

§ 4335. (§ 3741.) Former judgment. 

I. IN GENERAL. 
Applied in Chastain v. Chastain, 163 Ga. 69, 135 S. E. 439. 

II. PARTIES. 
Third Parties Not Barred by Findings. — Since "in cases 
of attachment the claim may be interposed either before or 
after judgment" (§ 5120), where a claimant, in response to 
a levy of the execution in attachment, files his claim to 
property in the hands of a garnishee, he is not estopped by 
the previous judgment in favor of the plaintiff in attach- 
ment against the garnishee on the issue tried, on a traverse 
of his answer, to which such claimant was not a party nor 
is he bound merely by reason of the fact that during the 
trial of the traverse to the garnishee's answer, he was 
physically present at the trial, but took no part therein. 
Tarver v. Jones, 34 Ga. App. 716, 131 S. E- 102. 

IV. JUDGMENT AS ESTOPPEL. 

Estoppel Generally. — The doctrine of estoppel by judg- 
ment has reference to previous litigation between the same 
parties based upon a different cause of action, and there is 
such an estoppel only as to such matters as were neces- 
sarily or actually adjudicated in the former litigation. 
Farmer v. Baird, 35 Ga. App. 208, 132 S. E- 260. 

Where Motion to Set Aside Overruled. — The previous 
judgment of the trial court overruling a motion to set aside 
amounts to an adjudication that the original judgment 
could not be set aside for any reason that was or which 
might have been assigned, and that judgment renders a 
subsequent motion in arrest subject to the application of 
the doctrine of res judicata. Farmer v. Baird, 35 Ga. App. 
208, 209, 132 S. E- 260. 

§ 4338. (§ 3744.) Effect of sustaining demur- 
rer. 

Applied in Cox v. Cox, 163 Ga. 93, 135 S. E- 504. 



ARTICLE 7 
Of Set-Off and Recoupment 
§ 4339. (§ 3745.) Set-off. 

See catchline "Plea of Usury" under section 4348. 
Agreements in More Than One Contract. — Where a plain- 
tiff agreed to sell and also to install a lighting plant, set-off 



for improper installation- will be allowed whether the con- 
tract to install was part of the contract of sale or was a 
separate contract. Colt Co. v. Hiland, 35 Ga. App. 550, 134 
S. E- 142. 

§ 4344. (§ 3750.) Set-off against negotiable 
note. 

Editor's Note. — In Fulton Nat. Bank v. Redmond, 161 Ga. 
204, 130 S. E. 568, the holdings of Tinsley v. Beall, 2 Ga. 
134 and Polk v. Stewart, 144 Ga. 335, 336, 87 S. E- 21, as set 
out under this catchline in the Georgia Code of 1926, are 
quoted and approved. 

Essential Elements of Plea. — See Fulton Nat. Bank v. 
Redmond, 161 Ga. 204, 130 S. E- 568, quoting the paragraph 
under this catchline in the Georgia Code of 1926. 

Applied in Pullen v. Powell, 35 Ga. App. 333, 132 S. E. 
922. 

§ 4348. (§ 3754.) Effect of dismissal after set- 
off filed. 

Plea of Usury. — Where in an action on a note the de- 
fendant pleaded that because of usury the plaintiff was en- 
titled to recover only the sum which the defendant had ob- 
tained, the plea went merely to the justice in part of the 
plaintiff's demand, and was not a plea of set-off, within the 
meaning of this section. Pape v. Woolford Realty Co., 35 
Ga. App. 284, 134 S. E- 174. 

§ 4350. (§ 3756.) Recoupment. 

Editor's Note — When Recoupment Allowed. — It is the 

recognized rule that, under a contractual relationship, the 
injured party may, where the rules of pleading permit, 
waive his rights under the contract, and recoup in tort, 
except where the breach complained of is simply the neg- 
lect of a duty expressly provided for by the contract itself. 
Porter v. Davey Tree- Expert Co., 34 Ga. App. 355, 359, 129 
S. E. 557. 

But a cross-action based on a tort can not be so amended 
as to base it on a contract. Tench v. Downey Hospital, 36 
Ga. App. 20, 135 S. E- 106. 

For recoupment to lie, the plaintiff should be liable to the 
defendant under the contract sued upon. Tench v. Downey 
Hospital, 36 Ga. App. 20, 135 S. E- 106. 

Persons Who May Recoup Damages. — See Tennessee 
Chemical Co. v. George, 161 Ga. 563, 131 S. E. 493, holding 
substantially the same as the first two sentences under this 
catchline in the Georgia Code of 1926. 

Burden of Proof. — See Porter v. Davey Tree-Expert Co., 
34 Ga. App. 355, 356, 129 S. E. 557 holding the same as the 
paragraph under this catchline in the Georgia Code of 1926 
and citing additional cases. 

§ 4352. (§ 3758.) For what it lies. 

Necessary Allegations. — A plea in the nature of a recoup- 
ment for alleged overpayments which nowhere alleges upon 
what terms or conditions, if any, the alleged overpayments 
were made, fails to set out any right in the defendant to 
recover against the plaintiff. Risener v. Kidd, 35 Ga. App. 
38, 132 S. E- 112. 



ARTICLE 8 
Of Limitation of Actions on Contracts 



SECTION l 
Periods of Limitations 
§ 4362. (§ 3768.) Open accounts. 

Instances Where Section Not Applied. — This section does 
not apply to the right of a road commissioner to collect 
salary that is due him. Sammons v. Glascock County, 161 
Ga. 893, 131 S. E. 881. 

Applied in Stanfield v.* Hursey, 36 Ga. App. 394, 136 S. E- 
826. 

§ 4369. (§ 3775.) Limitations in equity. 

Injunction against Paving Ordinance. — Where the owner 
of property stood by and allowed street improvements to be 
carried to completion, and received the benefits of the work 
and enjoyed them for several years, without taking any 
legal proceedings to prevent the expenditure of the money 
when the work was being carried on; he is estopped from 
enjoining a sale of his property to pay assessments. Raines 
v. Clay, 161 Ga. 574, 578, 131 S. E- 499. 



103 ] 



§ 4374 



FRAUD AND DECEIT 



§ 4419 



SECTION 2 
Exceptions and Disabilities 
§ 4374. (§ 3779.) Persons excepted. 

Applied in Stonecypher v. Coleman, 161 Ga. 403, 131 S. F. 
75. 

§ 4378. (§ 3783.) Absence from state of de- 
fendant. 

The Removal of a Debtor. — In order for the removal of a 
debtor from this State to suspend the operation of the stat- 
ute of limitations, it must be accompanied by an intention 
to change his legal residence or domicile. Stanfield v. 
Hursey, 36 Ga. App. 394, 136 S. F- 826. 

Ownership of Property within State. — The fact that the 
defendant might have owned property within the State 
during the period of his nonresidence does not operate to 
prevent the tolling of the statute. Kimball v. Kimball. 35 
Ga. App. 462, 133 S. F. 295. 



CHAPTER 8 
Of Breach and Damage 

§ 4390. (§ 3794.) Liquidated damages. 

In Absence of Agreement Fixing Damages. — Where no 
agreement fixing the amount of damages in case of the 
breach of a contract is embraced in the contract itself, the 
damages accruing to either party by reason of a breach are 
such as will compensate him for the injury sustained. 
Spalding Constr. Co. v. Simon, 36 Ga. App. 723, 725, 137 S. 
F- 901. 

Applied in Colt Co. v. Hiland, 35 Ga. App. 550, 134 S. F. 
142; Standard Motors Finance Co. v. O'Neal, 35 Ga. App. 
727, 134 S. F. 843. 

§ 4391. (§ 3795.) Penalties. 

Cited in Standard Motors Finance Co. v. O'Neal, 35 Ga. 
App. 727, 134 S. F. 843. 

§ 4393. (§ 3797.) Exemplary damages. 

Strict Construction. — In Copeland v. Dunehoo, 36 Ga. App. 
817, 821, 138 S. F. 267, it was said: "A strong word is 'never', 
yet we must construe this section in the light of all others 
relating to the same subject, and, on so construing it, we 
think that while the rule stated therein is a very strict and 
well-nigh universal one, it is still not a rule without any 
exception whatever. It seems that at least one exception is 
found in the provision for smart-money as contained in 
section 299." 

§ 4394. (§ 3798.) Remote damages. 

Applied in Bank v. Riehle, 36 Ga. App. 470, 137 S. F- 642; 
Courier-Herald Pub. Co. v. American Type Founders Co., 
34 Ga. App. 473, 130 S. E. 80. 

§ 4395. (§ 3799.) Damages contemplated by 
parties. 

Applied in Colt Co. v. Hiland, 35 Ga. App. 550, 134 S. F- 
142. 
Stated 

254. 



NINTH TITLE 
Of Torts, or Injuries to Persons or Property 



Neal v. Medlin, 36 Ga. App. 796, 797, 138 S. F. 



§ 4396. (§ 3800.) Interest. 

Question of Interest within Discretion of Jury. — Whether 
interest from the time of the breach shall be added to the 
damages is within the discretion of the jury. Black v. 
Automatic Sprinkler Co., 35 Ga. App. 8, 131 S. F- 543. 

§ 4398. (§ 3802,) Plaintiff bound to lessen 
damage. 

This section is applicable only where the damages can be 
lessened by reasonable efforts and expense. Reid v. Whise- 
nant, 161 Ga. 503, 510, 131 S. E. 904. 

Applied in Pullman Co. v. Strang, 35 Ga. App. 59, 80. 132 
S. F- 399. 

Quoted in part in Western, etc.. Railroad v. Townsend, 
35 Ga. App. 70, 135 S. F. 439. 

§ 4400. (§ 3804.) On covenants of warranty to 
land. 

Stated in Neal v. Medlin, 36 Ga. App. 796. 138 S. F- 254. 



CHAPTER 1 

General Principles, and Herein of Fraud and 
Deceit 

§ 4403. (§ 3807.) What are torts. 

Section Quoted and applied in Strachan Shipping Co. v. 
Hazlip-Hood Cotton Co., 35 Ga. App. 94, 132 S. F. 454. 

§ 4407. (§ 3811.) Cases of election. 

Stated in Tennessee Chemical Co. v. George, 161 Ga. 563, 
564, 131 S. F. 493. 

§ 4408. (§ 3812.) Privity. 

Applied in Strachan Shipping Co. v. Hazlip-Hood Cotton 
Co., 35 Ga. App. 94, 98, 132 S. E. 454. 

§ 4410. (§ 3814.) Deceit. 

Actionable Misrepresentation — When Vendee Need Only 
Believe. — Where the basis upon which the contract was en- 
tered upon lies in the existence or nonexistence of certain 
material facts, the verity of which needs must be ascer- 
tained from the statement of one acquainted with such 
facts, each of the contracting parties has a right to rely 
upon the truth of the other's statements with reference 
thereto, when such statements relate to matters apparently 
within the knowledge of the party asserting them; and to 
do this without checking up the statements with the dec- 
larations of other and different persons, in order, by such 
an investigation, to test their probable truth. Deibert v. 
McWhorter, 34 Ga. App. 803, 804, 132 S. F. HO. 

Mere Concealment Provision Charged. — Where the plain- 
tiff is proceeding ex delicto for deceit, it is not cause for a 
new trial to the defendant that the judge in his charge to 
the jury, which included this section, gave that part of the 
section dealing with "mere concealment." Deibert v. Mc- 
Whorter, 34 Ga. App. 803, 132 S. F- HO. 

§ 4413, (§ 3817.) By wife, servant, etc. 

Purely Personal Quarrels. — Where it appeared that the 
real purpose of the person assaulted in approaching the agent 
of a railroad company at his place of business was solely to 
renew a mere personal quarrel between the plaintiff and the 
agent, the plaintiff bring under notice that the agent was 
acting according to his instructions, the railroad company 
had no concern in what passed between them, and the trial 
judge did not err in granting a nonsuit. Dugger v. Central, 
etc., R. Co., 36 Ga. App. 782, 783, 138 S. F- 266. But see the 
dissenting opinion of Mr. Justice Hines in Holliday v. Mer- 
chants, etc., Transp. Co., 161 Ga. 949, 964, 132 S. F. 210. 

Application of Section to Railway Cases. — While this 
code section has been applied in numerous railway cases, it 
appears that the rule of liability on the part of railway 
companies is not wholly fixed and determined by the pro- 
vision of law quoted, but is enlarged or modified by the 
provisions of section 2780. Moore v. DeKalb Supply Co., 34 
Ga. App. 375, 377, 129 S. F. 899. 

Cited in Fisher v. Georgia Northern R. Co., 35 Ga. App. 
733, 134 S. F- 827. 

§ 4414. (§ 3818.) By employee. 

In General. — Where one "contract's with an individual ex- 
ercising an independent employment, for him to do a work 
not in itself unlawful or attended with danger to others, 
such work to be done according to the contractor's own 
methods and not subject to the employer's control or orders 
except as to results to be obtained, the employer is not li- 
able for the wrongful or negligent acts of such independent 
contractor or his servants." Zurich General Acci., etc., Ins. Co. 
v. Fee, 36 Ga. App. 248, 136 S. F. 173, quoting from Quinan 
v. Standard Fuel Supply Co.. 25 Ga. App. 47, 102 S. F- 543. 

Same — Test for Determining Relationship. — Under the sec- 
tion and the decisions relating thereto, the test to be ap- 
plied, in determining the relationship of the parties under 
a contract, lies in whether it gives, or the employer as- 
sumes, the right to control the time and manner of exe- 
cuting the work, as distinguished from the right merely to 
require results in conformity to the contract. Zurich Gen- 
eral Acci., etc., Ins. Co. v. Fee, 36. Ga. App. 248, 136 S. F- 
173, citing 39 C. T. p. 1322, section 1525; 42 A. F. R. 616, 
III a. 

§ 4419. (§ 3823.) Frauds by acts or silence. 

Applied in May v. Yearty, 34 Ga. App. 29, 128 S. F. 67. 



[ 104] 



§ 4420 



MALICIOUS PROSECUTION 



§ 4440 



§ 4420. (§ 3824.) Owner bound to keep prem- 
ises safe, when. 

Editor's Note. — It would seem that the degree of diligence 
required, under the section, in keeping the premises safe, 
does not consist in either slight diligence or of extraordi- 
nary diligence, but rather consists of ordinary care, such as 
a prudent householder might reasonably be expected to 
exercise. See Cuthbert v. Schofield, 35 Ga. App. 443, 133 
S. E. 303. This rule is not in conflict with those cases, of 
which the case of Fulton Ice, etc., Co. v. Pece, 29 Ga. App. 
507, 116 S. F. 57, is typical, in which the owner or occupier 
of land is required, under this section, to exercise extra- 
ordinary diligence towards an invitee, in discovering and 
repairing defects in the premises entered upon. In the Pece 
case, supra, the object causing the injury was not alleged 
to have been "apparently sound and in safe condition," but 
was shown to be old and worn. In the Cultbert case the 
owner was without actual knowledge of the defect, and there 
was nothing to indicate the propriety or necessity of mak- 
ing an inspection. Ordinary diligence would certainly not 
require an inspection where there is no reason to think 
an inspection necessary. See 29 Corpus Juris 427(2). Be- 
sides the rule of inspection might be applied with a much 
greater degree of rigidity in cases like the Pece case, supra, 
relating to dangerous instrumentalities. 

Erroneous Charge as to Duty to Invitee. — A charge to the 
jury to the effect that such a landowner is under the duty 
to see that the premises are "in such condition that the 
person invited may approach and remain thereon in safety," 
was error, in that the court, instead of charging, according 
to the true rule, that the duty of the landowner is to keep 
his premises safe, placed upon the landowner the heavier 
burden of seeing that the person on the premises remained 
there in safety. Southern R. Co. v. Bottoms, 35 Ga. App. 
804, 134 S. E. 824. 

Applied in Bussell v. Dannenberg Co., 34 Ga. App. 792, 132 
S. F- 230; Hickman v. Toole, 35 Ga. App. 697, 134 S. F. 635. 



CHAPTER 2 
Of Injuries to the Person 



ARTICLE 1 
Physical Injuries 
§ 4422. (§ 3826.) Physical injuries, 

Charge When Suit Based upon Negligence Alone. — In a 

suit for personal injuries based upon negligence alone, it 
is inapt to give in charge this section. Georgia R. etc., Co. 
v. Bryans, 35 Ga. App. 713, 134 S. F- 787; Hirsch v. Pl>w- 
den, 35 Ga. App. 763, 134 S. E- 833. 

§ 4424. (§ 3828.) Recovery for homicide, when. 

Recovery for Death of Child — Dependency of Mother. — 

In order for a mother to recover under the provisions of this 
section for the homicide of her child, it must appear not 
only that the child contributed substantially or materially to 
her support, but also that she was dependent upon it to an 
appreciable or material degree therefor. Owens v. Anchor 
Duck Mills, 34 Ga. App. 315, 129 S. F. 301. When mother 
was inmate of Georgia State Sanitarium, as an insane per- 
son long prior to, and at the time of homicide, she was not 
dependent upon the said child. Id. 

Same — Measure of Damages — Where the defendant is li- 
able and there is no reason to reduce the damages, the 
plaintiff is entitled to recover the value of the decedent's 
life. Western, etc., Railroad v. Reed, 35 Ga. App. 538, 546, 
134 S. F. 134. 

1924 Amendment — Constitutionality. — The amendment of 
1924 adding the words "minor or sui juris" after the words 
"child or children" is constitutional. Peeler v. Central, etc., 
R. Co., 163 Ga. 784, 137 S. F- 24. 

Same — Purpose. — It was the purpose of the General Assem- 
bly in the passage of this act to exclude dependency as a pre- 
requisite essential to a child's right to recover for the homi- 
cide of a parent;- and the provision of the act entitling a 
child, whether minor or sui juris, to recover damages for 
the homicide of its parent, properly construed, makes the 
question whether the child is dependent upon such parent 
in any respect wholly immaterial. Peeler v. Central, etc., 
R. Co., 163 Ga. 784, 137 S. F- 24. 

Same — Action by Adult Child under Section Prior to 
Amendment. — An adult child cannot recover for the homicide 
of his widowed mother, where such homicide occurred prior 
to the amendment of August 18, 1924. Thompson v. Georgia 



R., etc Co., 163 Ga. 598, 136 S. E- 89S. See also Peeler v. 
Central, etc., R. Co., 163 Ga. 784, 137 S. F- 24. 

§ 4425. (§ 3829.) Definition of terms in pre- 
ceding section. 

Section controlling principle in Leslie v. Macon, 35 Ga. 
App. 484, 133 S. E. 638. See also fairly complete list of 
cases there cited as applying the section. 

§ 4426. (§ 3830.) Diligence of plaintiff. 

Charge of Section. — A charge embodying, substantially, 
the language of the section, was not erroneous as impressing 
the jury that the plaintiff was under a duty to avoid the 
consequences of the defendant's negligence, though such 
negligence was not known or apparent to her, or was rea- 
sonably to be apprehended by her, and that if she didn't 
avoid it she could not recover. Howard v. Georgia, Ry., 
etc., Co., 35 Ga. App. 273, 133 S. F- 57. In this connection, 
see also, Central, etc., Ry. Co. v. Barnett, 35 Ga. App. 
528, 134 S. F. 126. 

Same — When Judge Must Give. — Where the pleadings and 
the evidence make an issue as to the plaintiff's diligence and 
the defendant's negligence, it is error for the court to omit 
an instruction to the jury embodying the principle expressed 
in the code section, even in the absence of any request to do 
so. Georgia R., etc., Co. v. McFlroy, 36 Ga. App. 143, 144, 
136 S. F. 85. 

Contributory Negligence. — Where by the exercise of or- 
dinary care the deceased could have avoided the consequence 
to himself caused by the defendant's negligence, a nonsuit 
was properly ordered. Little v. Rome R., etc., Co., 35 Ga. 
App. 482, 483, 133 S. F. 643; as to the plaintiff's duty gen- 
erally in this connection, see Atlantic Coast Line R. Co. 
v. Anderson, 35 Ga. App. 292, 133 S. F- 63. 

Same — Instruction to Jury. — It is improper to instruct 
the jury that the plaintiff must have been free from 
negligence before it can recover. Lime- Cola Bottling Co. v. 
Atlanta, etc., R. Co., 34 Ga. App. 103, 128 S. F. 226. 

Same — Same — Rule as to Contributory Negligence and 
Diminution of Damages Confused. — An instruction to the 
jury, in which the rule expressed in the section which pre- 
cludes a recovery where the plaintiff has failed to exercise 
ordinary care, is confused with the rule as to comparative 
negligence and diminution or apportionment of damages, is 
erroneous. Brown v. Meikleham, 34 Ga. App. 207, 128 S. E. 
918. 



ARTICLE 2 
Injuries to Reputation 
§ 4429. (§ 3833.) Malice. 

In General. — It is slanderous per se to falsely utter and 
publish a statement, with reference to a married woman, to 
the effect that she is the common wife of her husband and 
another man. Malice and damage will be inferred. Barker 
v. Green, 34 Ga. App. 574, 130 S. F- 599. 

Words Spoken in Jest and Retraction as Defense. — Malice 
is an "aggravating circumstance." The existence of malice 
would not be conclusively rebutted by proof of a retraxit, 
accompanied by an explanation that the words were spoken 
merely in jest, and only for the purpose of "teasing" the 
person to whom they were addressed. Barker v. Green, 34 
Ga. App. 574, 130 S. F. 599. 

Erroneously Charged — Corrected in Time. — It was not cause 
for a new trial to the losing party that the presiding judge 
gave in charge to the jury all of the section, when immedi- 
ately thereafter he expressly informed them that a part of 
the section was not applicable, and correctly instructed them 
as to which part was applicable. Barker v. Green, 34 Ga. 
App. 574, 130 S. F. 599. 

§ 4433. (§ 3837.) Slander. 

In General — Prima Facie Case. — Where the statements 
tended to show affliction with a contagious disease, and 
calculated to injure the plaintiff in her profession, and the 
evidence did not affirmatively show that the alleged slan- 
derous statements were privileged; a prima facie case for the 
plaintiff was made out, and the court erred in granting a 
nonsuit. Brown v. McCann, 36 Ga. App. 812, 138 S. F- 247. 



SECTION 2 
Malicious Prosecution 
§ 4440. (§ 3844.) Probable cause. 

Cited in Norman v. Young, 35 Ga. App. 221, 132 S. F- 414. 



105 ] 



§ 4446 



DAMAGES 



§ 4505 



§ 4446. (§ 3850.) When the right accrues. 

Abandonment of Prosecution. — While the procuring from 
the committing court of an order discharging the defendant 
in a warrant amounts to a termination of the prosecution 
when no further action is taken, the mere allegation of such 
discharge, without at least showing in general terms that 
the prosecution has been terminated, does not meet the re- 
quirements of this section. Rogers Co. v. Murray, 35 Ga. 
App. 49, 50, 132 S. E. 139. 



ARTICLE 3 
Other Torts to the Person 



SECTION 3 

Nuisances and Other Injuries to Health 

§ 4460. (§ 3864.) Sale of unwholesome provi- 
sions. 

Pleadings. — For a case substantially following the case 
cited under this catchline in the Georgia Code of 1926, see 
Copeland v. Curtis, 36 Ga. App. 255, 136 S. E. 324. 

Liability of Original Vendor. — The general rule is that 
where personal property sold by A to B is resold by B to 
C. there is no implied warranty. Young v. Certainteed Prod- 
ucts Corp., 35 Ga. App. 419, 133 S. E. 279. Whether the 
rule is applicable under this section — Quaere. 



CHAPTER 3 
Of Injuries to Property 



ARTICLE 1 
To Real Estate 
§ 4471. (§ 3875.) Right or possession. 

Liability of Lessee to Subsequent Lessee. — Where the 
owner of certain realty leased the same to a tenant, and be- 
fore the expiration of the term of the tenancy executed a 
lease of the same premises to a second lessee, the latter, 
upon the expiration of the time of the former tenancy, was 
vested with the right of possession of the property; and 
where the former tenant refused to surrender possession, the 
second tenant could maintain an action for damages against 
the former tenant for withholding the right of possession. 
Anderson v. Kokomo Rubber Co., 161 Ga. 842, 132 S. E. 76. 
The Supreme Court, in this case, reversed the Court of 
Appeals holding in the same case, Kokomo Rubber Co. v. 
Anderson, 33 Ga. App. 241, 125 S. E. 783. See under catch- 
line "Lessee Not Liable to Subsequent Lessee," Georgia 
Code of 1926. 

§ 4479. (§ 3883.) Slander of title. 

When Right of Action Accrues. — In an action for false, 
slanderous, and malicious words impugning the title to the 
plaintiff's lands, the right of action accrues to the plaintiff 
upon the doing of the act complained of, just as in injuries 
to personal reputation. King v. Miller, 35 Ga. App. 427, 
133 S. E. 302. 



ARTICLE 3 

Injuries to Personalty Generally 
§ 4485. (§ 3888.) Trespass. 

Trespass by Domestic Animals. — If domestic animals, 
such as oxen and horses, injure any one in person or prop- 
erty when they are rightfully in the place where they do 
the mischief, the owner of such animals is not liable for such 
injury unless he knows they are accustomed to do mischief; 
and such knowledge must be alleged and proved. But if they 
are wrongfully in the place where they do the mischief, the 
owner is liable, though he had no notice that they were ac- 
customed to do so before. Wright v. Turner, 35 Ga. App. 
241, 132 S. E. 650, citing Clark v. State, 35 Ga. App. 241, 
132 S. E. 650; Cooley on Torts, 341, 342 (2d ed. 402); Reed 
v. Southern Exp. Co., 95 Ga. 108, 22 S. E. 133. 



CHAPTER 4 
Of Defenses 



ARTICLE 1 
Of Justification 
§ 4489. (§ 3892.) Extenuation. 

Jury to Consider Testimony. — When the defendant has in- 
troduced testimony tending to sustain a plea of justifica- 
tion, though it fails to make it out, the jury may take such 
testimony into consideration in mitigation of damages. Hut- 
cheson v. Browning, 34 Ga. App. 276, 129 S. E. 125, citing 
Henderson v. Fox, 80 Ga. 479, 6 S. E- 164; Ransone v. Christ- 
ian, 49 Ga. 491; Ivester v. Coe, 33 Ga. App. 620, 127 S. E. 
790, 792; 5 Corpus Juris, 674 (section 112). 



ARTICLE 2 
Of Satisfaction, and Herein of Tender 
§ 4493, (§ 3896.) Tender of damages. 

Refers to iPlea of Tender. — The right and privilege given 
to the defendant by the provisions of the section contemplates 
and has reference to a plea of tender filed in response to the 
plaintiff's suit, and not to a mere oral offer or proposal to 
settle the suit by a future delivery of the property involved. 
Downs Motor Co. v. Colbert, 34 Ga. App. 542, 130 S. E. 
592. 

§ 4494. (§ 3897.) Tender in trover. 

Applied in Downs Motor Co. v. Colbert, 34 Ga. App. 542, 
130 S. E. 592. 



ARTICLE 3 
Limitation of Actions 
§ 4495. (§ 3898.) For damages to realty. 

Quoted in King v. Miller, 35 Ga. App. 427, 133 S. E- 302. 

§ 4497. (§ 3900.) To the person. 

Applied in Mansor v. Wilcox, 35 Ga. App. 213, 132 S. E. 



251. 



CHAPTER 5 
Of Damages 
§ 4503. (§ 3906.) Aggravation. 

Charge of Section in Slander Case. — In a case of slander 
where the words were spoken merely in jest, and only for 
the purpose of "teasing" the person to whom they were ad- 
dressed, — where the evidence showed that the utterance was 
made and published as alleged, a charge to the jury in the 
language of this section was not error on the ground that 
there was no evidence of "aggravating circumstances." 
Barker v. Green, 34 Ga. App. 574, 130 S. E- 599. 

Whether this section cannot be applicable at all in a 
slander case is not presented in and is not passed by Barker 
v. Green, 34 Ga. App. 574, 130 N. C. 599. 

§ 4504. (§ 3907.) Vindictive damages. 

See annotations to the preceding section. 

Instruction as to Present Worth of Pain. — A jury in a 
personal injury suit, where damages for future pain and 
suffering are sued for, should not be instructed that the 
amount representing the monetary compensation for future 
pain and suffering should be reduced to its present worth. 
Louisville, etc., R. Co. v. Maffett, 36 Ga. App. 513, 137 S. 
E. 404. 

It would be proper, however, in such a case to instruct the 
jury that in awarding damages for future pain and suffering 
they should give consideration to the fact that the plaintiff 
is receiving a present cash consideration for damage not yet 
sustained. Southern R. Co. v. Bottoms, 35 Ga. App. 804, 134 
S. E. 824. 

§ 4505. (§ 3908.) Necessary expenses. 

Instruction as to Reasonable Expenses for Medical Atten- 
tion. — An instruction to the jury that the plaintiff would be 
entitled to recover the reasonable expenses that were in- 
curred for medical attention "on account of injuries" was 



[ 106 ] 



§ 4509 



GENERAL PRINCIPLES 



§ 4560 



equivalent to an instruction that the plaintiff could recover 
the "necessary expenses consequent upon the injury," as 
provided in this section. Orange Crush Bottling Co. v. 
Smith, 35 Ga. App. 92, 132 S. E- 259. 

§ 4509. (§ 3912.) Damages too remote, when. 

Presence of Other Hypotheses as to Cause of Injury. — 

Where there were several reasonable hypotheses as to the 
cause of the injury with which the evidence was not less 
consistent than which the conclusion sought to be estab- 
lished, the evidence was insufficient to authorize a finding 
that the injury was the proximate result of the defendant's 
negligence. Pullman Co. v. Strang, 35 Ga. App. 59, #0, 132 
S. E- 399. 

§ 4510. (§ 3913.) Rule to ascertain. 

A result intended by a wrongdoer cannot, under this and 
the following section, be too remote for recovery of dam- 
ages. Richards v. International Agricultural Corp., 10 Fed. 
(2d), 218. 



TENTH TITLE 
Of Equity 



CHAPTER 1 
General Principles 
§ 4518. (§ 3921.) Equity jurisdiction. 

The Municipal Court of the City of Atlanta Has No Equity 
Jurisdiction.— See Ahlgren v. Walton, 34 Ga. App. 42, 128 S. 
E\ 585. 

§ 4521. (§ 3924.) Complaint must do equity. 

Applicable Where Both Legal and Equitable Relief Sought. 

—The principle established by this section is as well appli- 
cable where one in an equity suit seeks both legal and equit- 
able relief, as where he seeks a purely equitable right. 
Montgomery v. Atlanta, 162 Ga. 534, 550, 134 S. E- 152. 

Favorite Maxim. — The equitable maxim which is embodied 
in this section is a favorite maxim in equity. Duke v. 
Ayers, 163 Ga. 444, 454, 136 S. E- 410. 

§ 4522. (§ 3925.) Complete justice. 

Effect of Dismissal of Petition upon Cross Bill. — The dis- 
missal of the plaintiff's petition will not have the effect of 
dismissing a cross-bill of the defendant, although the relief 
prayed is not equitable in character and is cognizable in a 
court of law, in view of the uniform procedure act. . Jackson 
v. Mathis, 35 Ga. App. 178, 132 S. E. 410. 

Favorite Maxim. — The maxim embodied in this section is a 
favorite maxim of equity. Henderson v. Lott, 163 Ga. 326, 
331, 136 S. E. 403. 

§ 4528. (§ 3931.) Possession notice of title. 

Reference for Review of Cases. — For an exhaustive review 
of cases decided upon the principle inculcated by this sec- 
tion, see McDonald v. Dabney, 161 Ga. 711, 132 S. E- 547. 

Notice of Whose Rights. — Possession is not only notice of 
the rights of the possessor, but of those under whom he 
claims. Walker v. Neil, 117 Ga. 733, 745, 45 S. E- 387; Austin 
v. Southern Home Bldg., etc., Assn., 122 Ga. 439, 50 S. E. 
382; McDonald v. Dabney, 161 Ga. 711, 724, 132 S. E- 547. 

Exclusiveness of Occupancy. — The possession of land 
which will be notice of the occupant's title must have some 
element in it indicative that the occupancy is exclusive in 
its nature. McDonald v. Dabney, 161 Ga. 711, 132 S. E- 547. 

Possession Open, Visible, etc. — In order for the possession 
to have the effect of notice it must be actual, open, visible, 
exclusive and unambiguous. McDonald v. Dabney, 161 Ga. 
711, 132 S. E. 547. 

§ 4529. (§ 3832.) Notice. 

Applied in Waynesboro Planing Mill v. Augusta Veneer 
Co., 35 Ga. App. 686, 134 S. E- 790. 

Notice Received in Representative Capacity. — Notice re- 
ceived in representative capacity affects act transacted in 
personal capacity. Puckett v. Jones, 36 Ga. App. 253, 136 
S. E. 462. 

§ 4530. (§ 3933.) Notice extends to facts dis- 
covered. 

Description of Stock of Goods. — Under this section descrip- 
tion of property in a chattel mortgage as "our stock of mer- 



chandise consisting of dry goods, shoes, clothing, groceries, 
and hardware," is sufficient where it is shown that the 
mortgagor was a well-known firm and had only one stock 
of goods, which was located in the town where the mort- 
gage was executed. In re Coleman, 2 Fed. (2d), 254. 

Applied in Waynesboro Planing Mill v. Augusta Veneer 
Co., 35 Ga. App. 686, 134 S. E- 790. 

Charge of Section Upheld. — The charge of the court in 
substance as this section was upheld under the evidence 
and circumstances of the case. Darden v. Washington, 35 
Ga. App. 777, 134 S. E- 813. 

Cited in North Georgia Trust, etc., Co. v. Hulme, 35 Ga. 
App. 627, 134 S. E. 200. 

§ 4531. (§ 3934.) Bona fide purchaser. 

See annotations to § 3762. 

Evidence as to Bona Fides Conflicting — Injunction De- 
nied. — Injunction against exercising power of sale will be 
denied where there is conflict of evidence that the creditor 
had knowledge that the land was paid for by the debtor 
with trust fund. Johnson v. Southern States Phosphate,, 
etc., Co., 163 Ga. 98, 135 S. E- 435. 

Right of Bona Fide Purchaser Unqualified. — The purchaser 
is entitled to his bargain, if made in good faith, and can 
not be disturbed in his possession, no matter what equitable 
arrangement the holder of the secret equity proposes as 
affording protection to all the parties concerned, and a court 
of equity has no jurisdiction to interfere with such vested 
legal right and title. Johnson v. Southern States Phosphate,, 
etc., Co., 163 Ga. 98, 105, 135 S. E- 435. 

A bona fide mortgagee stands precisely in the attitude of 
a bona fide purchaser, and is entitled to the same protec- 
tion. Johnson v. Southern States Phosphate, etc., Co., 163 
Ga. 98, 105, 135 S. E- 435. 

§ 4533. (§ 3936.) Lis pendens, notice by. 

Bankruptcy against H., Notice to W's Mortgagee. — The 

pendency of bankruptcy proceedings against the husband is 
general notice to the mortgagee of the wife who claims title 
under the husband. Chatham Chemical Co. v. Vidalia 
Chemical Co., 163 Ga. 276, 278, 136 S. E- 62. 

§ 4335. (§ 3938.) Purchaser without notice 
from one with notice, and vice versa. 

Principle Applied. — See Bank v. Wheeler, 162 Ga. 635, 134 
S. E. 753. 

Applied to bona fide holder of note from a mala- fide 
grantee in a security deed. First Nat. Bank v. Pounds, 163 
Ga. 551, 136 S. E- 528. 

The reason is that otherwise a bona fide purchaser might 
be deprived of selling his property for full value. North 
Georgia Trust, etc., Co. v. Hulme, 35 Ga. App. 627, 134 S. 
E- 200. 

§ 4537. (§ 3940.) Which of two innocent per- 
sons to bear loss. 

Instance of Application. — Undisclosed principal subject to 
same defenses as are available against the agent. Truluck 
v. Carolina Portland Cement Co., 34 Ga. App. 501, 130 S. 
E. 356. 

§ 4538. (§ 3941.) Common-law remedy. 

Prayer for Discovery, etc., Immaterial — When. — Notwith- 
standing the prayer for "discovery," "accounting," and re- 
lief in equity, where the petition alleges no cause showing 
inadequacy at law, equity has no jurisdiction. Decatur 
County v. Praytor, etc., Co., 36 Ga. App. 611, 137 S. E- 918. 

Partition Proceedings. — In proceedings for partition where 
no peculiar circumstances are shown for equitable jurisdic- 
tion, equity will not interfere; the remedy prescribed at law 
in § 5355 being sufficient for partition purposes. Saffold v. 
Anderson, 162 Ga. 408, 410, 134 S. E- 81. 

Cancelling Policy after Loss on Ground of Fraud. — The 
question whether equity will cancel a policy and enjoin 
proceedings at law thereon, on the ground of fraud, that 
defense being available at law, was raised but not decided in 
Davis v. Metropolitan Life Ins. Co., 161 Ga. 568, 573, 131 S. 
E- 490. 

§ 4560. (§ 3963.) Application and order. 

Effect of Failure to Bring Suit against All Parties Named. 

— -Where an application is made naming several parties as 
possible defendants, it is not necessary that a suit be in- 
stituted against all persons named in order to use the testi- 
mony against one of them. Hardeman v. Ellis, 162 Ga. 664, 
135 S. E. 195. 



[107] 



§ 4567 



SPECIFIC PERFORMANCE 



§ 4637 



CHAPTER 3 
Of Perpetuation of Testimony 



ARTICLE 4 
Of Accident and Mistake 
§ 4567. (§ 3907.) Error in form. 

Relief Notwithstanding Set off at Law. — The equitable re- 
lief prescribed by this section will be given notwithstanding 
the existence of a defense by way of set off in favor of the 
defendant which he might be availed of at law. Gibson v. 
Alford, 161 Ga. 672, 682, 132 S. E- 442. 

Mistake on One Side, Fraud on the Other. — In addition to 
reforming a contract when, from mutual mistake or mistake 
common to both parties, an instrument does not express 
the true agreement of the parties, a court of equity will also 
reform an instrument where there is ignorance or mistake 
on one side, and fraud or inequitable conduct on the other. 
Gibson v. Alford, 161 Ga. 672, 682, 132 S. E- 442. 

Correcting Misdescription to Conform to Agreement. — 
Where it is made to appear that an agreement was made 
"with reference to a certain designated piece of land, reforma- 
tion of the contract made to evidence the agreement will be 
decreed if the misdescription in the contract or deed includes 
more land than ought to be included, or contains less than 
the parties agreed upon. Gibson v. Alford, 161 Ga. 672, 682, 
132 S. E- 442. 

§ 4568. (§ 3071). Rule of construction as to 
conditions. 

Cited in Grantham v. Royal Ins. Co., 34 Ga. App. 415, 130 
S. E- 589. 

§ 4580. (§ 3983.) Mistake of fact. 

Laches Repelled by Other Circumstances. — While the suit 
was brought many years after the' making of the deed, the 
original purchaser, and the other two parties plaintiff had 
been in continual possession of the land, and the plaintiffs 
were not aware of the mistake in the deed until a short 
time before the suit was brought. This fact, and where there 
had been no assertion of a claim adverse to the rights of 
the plaintiffs, as set up in the petition, and no fact or cir- 
cumstance to put plaintiffs on notice of such claim, and 
the further fact that no rights of third parties had inter- 
vened, warrants the finding that the plaintiffs were not bar- 
red bv laches. Sweetman v. Dailey, 162 Ga. 295, 133 S. E. 
257. 



CHAPTER 5 
Of Account and Set-Off 
§ 4586. (§ 3989.) Account. 

Accounting between Parties. — A court of equity has ju- 
risdiction in all cases of an accounting and settlement be- 
tween partners. Smith v. Hancock, 163 Ga. 222, 229, 136 S. 
E- 52. 

§ 4587. (§ 3990.) Mingling of goods. 

Applied against a sheriff as to fund procured from execu- 
tion sale. Finance Co. v. Eowry, 36 Ga. App. 337, 136 S. 
E- 475. 



CHAPTER 6 

Of Administration of Assets 

§ 4596. (§ 3999.) Interfering with administra- 
tion. 

Cited in Nash v. Cowart, 162 Ga. 236, 133 S. E- 263. 

§ 4597. (§ 4000.) Petitions for direction. 

Only Representative Can Ask Relief. — Under this section 
only the representative of the estate may ask for the di- 
rection of a court. Palmer v. Neely, 162 Ga. 767, 135 S. 
E. 90. 



Cash Surrender Value of Policy. — The cash surrender and 
cash loan value of a policy of life insurance accruing at the 
end of a specified tontine period is not subject to garnishment 
by creditors of the insured; nor will such value be made 
available to the judgment creditor of the insured by a court 
of equity in proceedings instituted for the purpose of ob- 
taining equitable relief analogous to a process of garnish- 
ment at law. Farmers, etc., Bank v. National L,ife Ins. 
Co., 161 Ga. 793, 131 S. E- 902. 

Cited in Cooper v. Reeves, 161 Ga. 232, 131 S. E- 63. 



CHAPTER 8 
Of Election 
§ 4609. (§ 4012.) Election. 

Cited in Hardeman v. Ellis, 162 Ga. 664, 135 S. E- 195, 
which case was distinguished from L,amar v. McEaren, 107 
Ga. 591 t 34 S. E- 116 decided under this section. 

§ 4610. (§ 4013.) By a legatee. 

Cited in Robinson v. Ramsey, 161 Ga. 1, 10, 129 S. E. 
837. 



CHAPTER 9 
Of Execution of Powers 

§ 4620. (§ 4023.) Power of sale in deeds of 
trust, etc. 

Sale of Part of Land Not Authorized.— The holder of a se- 
curity deed, which conveys a single tract of land, can not 
under a power of sale contained in said deed which author- 
izes such holder to sell the same upon default of the grantor 
in paying the debt secured thereby, sell a part of said tract, 
but must sell the whole. Doyle v. Moultrie Bkg. Co., 163 
Ga. 140, 142, 135 S. E- 501. 



CHAPTER 10 
Of Fraud 
§ 4623. (§ 4026.) Misrepresentation. 

Applied in Nix v. Citizens Bank, 35 Ga. App. 546, 130 S. 
E. 597. 

§ 4626. (§ 4029). Slight evidence sometimes 
sufficient. 

Cited in Eberhardt v. Bennett, 163 Ga. 796, 803, 137 S. E. 
64. 



CHAPTER 11 
Of Specific Performance 
§ 4634. (§ 4037.) Parol contract for land. 

Parol Evidence Is Admissible. — In an action for specific 
performance of a contract, not in writing, for the exchange 
of lands, parol evidence is necessarily admissible for the 
purpose of proving such contract. Hattaway v. Dickens, 163 
Ga. 755, 137 S. E- 57. 

Payment of Full Purchase Price — Erroneous Instruction. 
— In a dispute between two claimants as to the ownership of 
land, where it appeared that one of them bought the land un- 
der a parol contract and paid the full purchase price with- 
out receiving a deed, an instruction to the jury that "the 
only question to be considered by them is who has the su- 
perior title, the legal written title, to the land in question." 
is erroneous as excluding from the jury the right of the 
claimant under this section. Franklin v. Womack, 162 Ga. 
715, 134 S. E- 758. 

§ 4637. (§ 4040.) Inadequacy of price. 

Applied in Chan v. Judge, 36 Ga. App. 13, 134 S. E- 925. 



[ 108] 



THE CODE OF PRACTICE 



FIRST TITLE 

Courts of Original Jurisdiction, Their Officers, 
Organizations, and Practice 



CHAPTER l 

General Provisions 

§ 4642. (§ 4045.) When judicial officer is dis- 
qualified. 

Grounds Enumerated Exhaustive. — The statutory grounds 
of the disqualification of a judge are set forth in this sec- 
tion, and are exhaustive of the subject. It follows that 
basis or prejudice on the part of a judge is no ground for 
his disqualification. Hendricks v. State, 34 Ga. App. 508, 

130 S. F- 539. 

Former Counsel. — The rule as to disqualification when the 
judge has served as counsel in the case, applied in Faulk- 
ner v. Walker, 36 Ga. App. 636, 137 S. F- 909. 

Disqualification to Forfeit Bond. — A presiding judge who 
is disqualified to try a criminal case is also disqualified to 
forfeit a bond in such case, or to grant a rule nisi on the 
forfeiture. Faulkner v. Walker, 36 Ga. App. 636, 137 S. F- 
909. 

§ 4643. (§ 4046.) Powers of courts to punish 
for contempt. 

Trial by Jury — Violation of Mandamus. — Fvery court has 
power to compel obedience to its judgments, orders, and 
processes; and in a proceeding for contempt growing out of 
the alleged violation by the defendant therein of a manda- 
mus absolute, the judge can determine all questions of fact 
without the intervention of a jury, except in the cases pro- 
vided for in this section. Gaston v. Shunk Plow Co., 161 
Ga. 287, 130 S. F- 580. 

Cited in Smith v. State, 36 Ga. App. 37, 39, 135 S. F. 102. 

§ 4644. (§ 4047.) Powers of courts enumer- 
ated. 

General Consideration: — Interference with Receivers Posses- 
sion. — One who dispossesses the receiver of property consigned 
to him by the court dispossesses the court, and of course be- 
comes in contempt of court; and he may be punished for 
contempt, and the property may be restored. A contempt of 
court being complete by dispossessing the receiver, the fact 
that no injunctive order has been passed does not affect the 
case. Coker v. Norman, 162 Ga. 351, 133 S. F- 740. 

Paragraph 4 — (Power to Secure Attendance of Witness. — 
Where it is necessary in order to secure the attendance of 
a witness at court to make him testify, the court has ample 
authority to secure his attendance by requiring him to give 
bail, or, in default thereof, to go to jail. Pullen v. Cleckler, 
162 Ga. Ill, 114, 132 S. E. 761. 

Cited in Smith v. State, 36 Ga. App. 37, 39, 135 S. F- 102. 



CHAPTER 2 
Justices' Courts, Their Officers, and Practice 



ARTICLE 5 
Commencement of Suits, Services, etc. 
§ 4715. (§ 4116.) Suits, how commenced. 

Liberal Construction. — Niceties in pleading are not required 
in a justice's court. Accordingly, a liberal construction has 
been given to this section. If the defendant is informed of 
the nature of the plaintiff's demand against him, the re- 
quirement of this section is met. Ladd Lime, etc., Co. v. 
Case, 34 Ga. App. 190, 129 S. F- 6. 

§ 4717. (§ 4118.) Summons, how served. 

The statutory method of service is exclusive, and such a 
defendant can not be served by leaving a copy "at his of- 
fice" unless his office is also his most notorious place of 
abode, or residence. Bennett v. Taylor, 36 Ga. App. 752, 754, 
138 S. F. 273. 

§ 4726. (§ 4127.) Defendant may plead as in 
superior court. 

Cited in Owen v. Moseley, 161 Ga. 62, 71, 129 S. F. 787. 



ARTICLE 9 

Appeals and Juries 

§ 4742. (§ 4142.) Appeals to the superior 
court. 

Jurisdictional Amount as Affected by Counterclaim. — Al- 
though the plaintiff's claim be less than $50, where a count- 
er-claim is filed for more than $50 but not exceeding the 
maximum jurisdictional amount of $100, the defendant may 
appeal to the superior court. Owens v. College Park Supply 
Co., 35 Ga. App. 618, 134 S. F. 179. 



CHAPTER 3 
Ordinaries 



ARTICLE 1 

Ordinaries and Their Courts 

§ 4786. (§ 4228.) Eligibility and disability of 
ordinary. 

Extent of Prohibition upon Acting as Guardian. — The code 
provisions which prohibit an ordinary from acting as guard- 
ian of a minor do not prevent an ordinary from recovering 
in behalf of a minor money derived from benefit insurance 
where the act of 1918 authorizes an ordinary to receive and 
collect such money. Foster v. Wood, 36 Ga. App. 734, 137. 
S. F. 847. 



ARTICLE 4 
Other Authority of Ordinary 

§ 4804(1). Custody and distribution when no 
legal guardian. — The ordinaries of the several 
counties of this State be and they are hereby 
made and constituted the legal custodians and 
distributors of all moneys due and owing to any 
minor child or children, idiots, lunatics, insane 
persons, and persons non compos mentis, who 
have no legal and qualified guardian, to receive 
and collect all such moneys due or owing to 
such minor or minors, idiots, lunatics, insane 
persons, and persons non compos mentis, aris- 
ing from such insurance policies, benefit soci- 
eties, legacies, inheritances, or from any other 
source; provided, that the amount due such 
minor or minors, idiots, lunatics, insane persons, 
and persons non compos mentis from all sources 
does not exceed the amount of five hundred 
dollars, without any appointment or qualifying 
order, he is authorized to take charge of such 
money or funds for such minor or minors, 
idiots, lunatics, and insane persons and persons 
non compos mentis, by virtue of his office as 
ordinary in the county of the residence of such 
minor or minors, idiots, lunatics, insane persons, 
and persons non compos mentis, and the cer- 
tificate of such ordinary, that no legally quali- 
fied guardian has been so appointed and that the 
estate of such minor or minors, idiots, lunatics,, 
insane persons, and persons non compos mentis, 
from all sources, does not exceed the amount of 
five hundred dollars ($500.00), shall be con- 
clusive, and shall be sufficient authority to jus- 
tify any debtor or debtors in making payment 
of monies due as aforesaid, claims therefor hav- 
ing been made by such ordinary. Acts 1918, 
pp. 198, 199; 1927, p. 257. 

Editor's Note. — The amendment of 1927 constituted the or- 
dinaries custodian and distributor of moneys due and owing 



[109] 



§ 4804(2) 



SUPERIOR COURT AND ITS JUDGES 



§ 4863 



to idiots, lunatics, insane persons and persons non compos 
mentis. 

Collection of Benefit Insurance. — The code provisions which 
prohibit an ordinary from acting as guardian of a minor do 
not prevent an ordinary from recovering in behalf of a minor 
money derived from benefit insurance where this act au- 
thorizes an ordinary to receive and collect such money. Fos- 
ter v. Wood, 36 Ga. App. 734, 137 S. E- 847. 

§ 4804(2). Employment of counsel. — The or- 
dinary of the county of the residence of such 
(minor or minors), idiots, lunatics, insane persons, 
and persons non compos mentis is hereby au- 
thorized and permitted, in his discretion, to em- 
ploy counsel to bring suit to recover any amount 
due such minor or minors, idiots, lunatics, in- 
sane persons, and persons non compos mentis, 
in the name of such ordinary as guardian for 
such minor or minors, idiots, lunatics, insane 
persons and persons non compos mentis, in any 
court having jurisdiction thereof, and such or- 
dinary shall have authority to pay such counsel 
•.so employed a reasonable fee for his services in 
such matters, which is necessary to enforce the 
right of such minor or minors, idiots, lunatics, 
insane persons, and persons non compos mentis, 
out of the funds so collected. Acts 1918, pp. 
198, 199; 1927, p. 258. 

Editor's Note. — The ordinary of the county of residence of 
"'idiots, lunatics, insane persons and persons non-compos 
mentis" was brought within the operation of this section by 
"the amendment of 1927. In amending the section the words 
"minor and minors," which appeared immediately before the 
above referred insertion, were inadvertantly, it is believed, 
left out. The preliminary statement of the amendatory act 
directs no such omission, and from a reading of the section 
as a whole it becomes evident that it was not the intention 
of the legislature to leave out those words. Hence they are in- 
serted parenthetically at the place where they originally 
appeared. 

§ 4804(4). Record open to inspection. — It 

shall be the duty of such ordinaries to keep a 
well-bound book properly indexed, in which a 
complete record shall be kept of all money re- 
ceived by him for such minor or minors, idiot, 
lunatic, insane persons, and persons non com- 
pos mentis; said record shall show from what 
source said funds were derived, and to show to 
whom and for what such money was paid, 
which book shall be open for inspection of the 
public at all times, as other records in his office. 
Acts 1918, pp. 198, 199; 1927, p. 257. 

Editor's Note. — By the amendment of 1927, the ordinary is 
required to keep record of moneys received for idiots, luna- 
tics, insane persons and persons non compos mentis. 

§ 4804(6). Payment authorized. — The ordi- 
nary receiving such funds is hereby authorized 
and directed to pay out said funds so received 
by him, or whatever amount he may think nec- 
essary, for the support, education, and main- 
tenance of such minor or minors, idiots, lunatics, 
and insane persons and persons non compos 
mentis, as he may think in his judgment proper 
and right, and when so expended shall be final, 
and no liability shall attach to such ordinary or 
his bondsmen by reason of such expenditures 
when properly done. Acts 1918, pp. 198, 199; 
1927, p. 257. 

Editor's Note. — The provision as to the payment for the 

support, education, etc., of idiots, lunatics, insane persons 

and persons non compos mentis, was introduced by the 
amendment of 1927. 

§ 4804(7). Deposit of funds. — When any such 
funds shall come into the hands of the ordinary 

[1 



of any county, belonging to such minor or 
minors, idiots, lunatics, insane persons, and per- 
sons non compos mentis, and there shall be no 
cause or necessity arising for the payment out 
of said funds for support, education, and main- 
tenance of such minor or minors, idiots, luna- 
tics, insane persons, and persons non compos 
mentis, then in that event it shall be the duty 
of such ordinary to place said funds in some 
good and solvent bank, in the savings depart- 
ment of such bank at the then current rate of 
interest allowed on saving deposits, and when 
so deposited there shall be no further liability 
against such ordinary or his bondsmen when 
such deposit is made in good faith. Acts 1918, 
pp. 198, 199; 1927, p. 257. 

Editor's Note. — The amendment of 1927 extended the opera- 
tion of this section to funds of idiots, lunatics, insane per- 
sons and persons non compos mentis. 



CHAPTER 6 
The Superior Courts and Their Officers 



ARTICLE 1 
The Superior Court and Its Judges 

§ 4839. (§ 4315.) Must hold courts as pre- 
scribed by law. 

Reference. — As to terms in McDuffie, Bryan, Bacon, 
Dougherty, Echols, Forsyth, Jeff Davis, Jenkins, Lamar 
Building, Pulaski, Robin, Tift, Turner, see acts of 1927 pp. 
175, et seq. 

Effect of Sitting in Wrong County. — A charter, granted by 
a court sitting in a county other than the one prescribed by 
law, is void. Rogers v. Toccoa Power Co., 161 Ga. 524, 131 
S. E. 517. 



(§ 4320.) Jurisdiction of superior 



§ 4849. 
courts. 

To Compel Attendance of Witness. — This section is not 
applicable to a situation where a witness having been sub- 
poenaed to attend the superior court, fails to do so, and 
the court proceeds by attachment to compel his attendance 
and punish him by a fine not exceeding three hundred dol- 
lars; this being governed by section 5852. Pullen v. Cleckler, 
162 Ga. Ill, 132 S. E. 761. 

§ 4850. (§ 4321.) Judges may grant writs 
of certiorari, etc. 

Cross Reference. — As to the enforcement by the judge of 
delivery of property to receiver, see annotations to section 

5475. 

§ 4863. (§ 4334.) Judge expressing opinion 
on facts, error. 

II. WHAT CONSTITUTES. 

Contentions of the Parties. — Instructing the jury as to what 
the court understood to be the contentions of the parties, is 
not an expression of opinion. McArthur v. Ryals, 162 Ga. 
413, 418, 134 S. E. 76. 

Instruction as to Circumstantial Evidence, Held as Error 
as Expression of Opinion. — Cook v. State, 36 Ga. App. 582, 137 
S. E. 640. 

Assumption of Commission of Crime. — There being nothing 
in the evidence or in the defendant's statement to dispute 
the facts that the alleged crime was committed, and his de- 
fense resting solely upon the contention that he did not 
participate in the offense, the court, in charging the jury, 
did not violate the provisions of this section in assuming that 
a crime had been committed. Pruitt v. State, 36 Ga. App 
736, 138 S. E. 251. 

IV. ILLUSTRATIVE CASES. 
"You Seem to Be Fishing Anyhow' r Not Expressive of 
Opinion. — The use of the sentence by the court "well go ahead 
and use him (the witness) ; you seem to be fishing anyhow," 
was, under the circumstances of the case, held not to be an 
intimation of opinion by the judge. Richardson v. State, 161 
Ga. 640, 131 S. E. 682. 

10] 



§ 4864 



GENERAL PRINCIPLES APPLICABLE TO ATTORNEYS 



§ 4954 



§ 4864. Within what time judges shall decide 
motions. 

Provision Directory. — The provision as to the duty of the 
judge to notify counsel of the overruling of a motion for a 
new trial, is directory only, and will not suffice, when con* 
sidered in connection with section 6152, to extend the time 
prescribed therein for presenting bills of exception for 
approval. Burnett v. McDaniel & Co., 35 Ga. App. 367, 133 
S. E. 268. 



ARTICLE 2 
Judicial Districts and Circuits 

§ 4870. (§ 4339.) Thirty-three judicial cir- 
cuits. — The entire state is divided into thirty- 
three judicial circuits, in reference to the juris- 
diction and sessions of the superior court, as fol- 
lows, to wit: 

Augusta Circuit, composed of the counties of 
Burke, Columbia, and Richmond. Acts 1807, p. 
38; 1927, p. 175. 

Toombs Circuit, composed of the counties of 
Glascock, Lincoln, McDuffie, Taliaferro, Warren, 
and Wilkes. Acts 1910, p. 63; 1927, p. 175. 

Editor's Note. — The county of McDuffie was added to 

Toombs Circuit by the amendment of 1927. The paragraphs 

here set out were the only ones affected. This act makes 

provisions so as not to affect the rights of solicitor general 
during the present time. 



ARTICLE 3 
Sessions and Adjournments of Superior Courts 

§ 4877. (§ 4346.) Terms adjourned five days 
before next term. 

Motion for New Trial Goes to Next Term.— The preced- 
ing term of the court stands adjourned by operation of law 
five days prior to the commencement of the succeeding term ; 
and a motion for new trial made in one term automatically 
goes over to the next regular term, and the judge is without 
jurisdiction to dismiss it in vacation. Marshall v. State, 34 
Ga. App. 434, 129 S. E. 665. 



ARTICLE 4 
Clerks of Superior Courts 
§ 4897. (§ 4366.) May be removed. 

Pleading — Particularity of Charges. — Where the petition 
alleges that the acts of misconduct which are grounds for 
removal are illustrated in detail by a certain auditor's re- 
port on file in the office of the clerk of the superior court 
(who is the defendant), and which is referred to in the peti- 
tion as an exhibit, the charges are alleged with a degree of 
particularity sufficient to put the defendant on notice. Wal- 
lace v. State, 34 Ga. App. 281, 129 S. E- 299. 

Part of Default in Other Capacity than Clerk of Superior 
Court. — Although it may appear from the petition and ex- 
hibits that a certain part of the money collected was col- 
lected by the clerk in his capacity of clerk of the city court, 
and that certain of the records alleged to have been im- 
properly kept were improperly kept by him as clerk of the 
city court, the petition sets out sufficient grounds for his 
removal as clerk of the superior court. Wallace v. State, 34 
Ga. App. 281, 129 S. E- 299. 

But he can not, by reason of any misconduct on his part 
in the discharge of the duties devolving on him as ex-of- 
ficio clerk of a city court, be removed from office by the 
judge of the superior court, as is provided in this section. 
Wallace v. State, 34 Ga. App. 281, 129 S. E- 299. 

§ 4901(6). Endorsement of plat for laying out 
street or highway; report of city planning com- 
mission. — In any county having a population of 
60,000 or more inhabitants by the last United 
States Census, it shall be unlawful to record or 
receive for record in the office of the clerk of the 
superior court any map or plat for the laying out 
of any street or highway unless it bears the en- 
dorsement thereon of the commissioners of 



roads and revenues, provided that if the land to 
be platted is located within a city having a city 
planning commission established by charter, or 
outside of such city within six (6) miles of the 
limits thereof, such endorsement shall be by the 
mayor and general council of such city. Before 
approving a plan or plat of such subdivision of 
land, the commissioners of roads and revenues or 
the mayor and general council, shall consider 
the location, widths and grades of the proposed 
streets or highways within or adjacent to such 
subdivision. Each such subdivision of land 
shall have adequate means of access to the lots 
therein from the public streets or highways and 
shall be so laid out as to provide for the con- 
tinuation of existing streets and highways and 
for the proposed highway widenings deemed 
necessary in the public interest by such commis- 
sioners of roads and revenues or such mayor and 
general council and shall be so laid out as to per- 
mit of an appropriate subdivision of adjoining 
properties; provided that such commissioners or 
such mayor and general council may waive or 
modify any of the above conditions or require- 
ments wherever owing to the peculiar shape or 
location of the land such condition or require- 
ment cannot in the judgment of such commis- 
sioners or of such mayor and general council 
reasonably be demanded with due regard to the 
appropriate development of the land to be sub- 
divided. Any such map must first be submitted 
to the city planning commission for considera- 
tion and report to the mayor and general council 
provided the property thus platted jis located 
within such city or within six miles of the limits 
thereof. The foregoing provisions shall likewise 
apply when any person in said territory desires 
to construct sewers or disposal plants or similar 
construction for the disposal of sewerage. In 
such event the provisions of this section apply, so 
that the plans for the construction of said sew- 
erage and disposal plants must be approved in 
the same manner as is provided for the approval 
of plats and the penalty provided in section 
4901(7) shall apply to all improvements and 
any subdivisions wherein sewers or disposal 
plants as herein provided are constructed; the 
same penalty concerning same shall apply for 
failure to have the plans for the same approved 
before being installed as applies to selling land 
as herein provided with reference to recording 
plats. Acts 1921, pp. 216, 219; 1923, p. Ill; 1927, 
p. 318. 

Editor's Note.— The last two- sentences of this section are 
new with the amendment of 1927. 

The Act of 1927 makes no reference to the Act of 1923 
which reduced the required population from 200,000 to 60,- 
000 but amends the original act, enacted in 1921. Although 
the Act of 1927 fixes the required population at 200,000 or 
more in view of the Act of 1923 it would seem that 60,000 is 
the intended minimum. 



CHAPTER 7 
Attorneys at Law 



ARTICLE 10 
General Principles 



e* ■ 



§ 4954. (§ 4416); -Liability of attorneys to be 
ruled. ' *'" 



[111] 



§ 4956 



AUDITORS— DISPOSITION OF CASE 



§ 5141 



Relationship Necessary. — Certain facts held not to consti- 
tute the relation of attorney and client, and application of 
section denied. Smith v. International Lawyers, 35 Ga. 
App. 158, 132 S. E- 245. 

§ 4956. (§ 4418.) Limitation on authority. 

Applied in Rawls v. Heath. 36 Ga. App. 372, 376, 136 S. E. 
822. 

Burden of Proof. — Where the defendant to a suit contends 
that he settled the claim by paying the plaintiff's attorney 
less than the full amount thereof, the burden is upon the 
defendant to show affirmatively that the plaintiff's attorney 
had special authority from his client to make the settle- 
ment. High v. Hollis, 35 Ga. App. 195, 132 S. E- 260. 

§ 4957. (§ 4419.) Improper conduct by counsel. 

IV. MISTRIAL. 
B. Instructions Remedying Improper Remarks. 

See Furney v. Tower, 36 Ga. App. 698, applying the prin- 
ciple staled under this analysis line in the Code. 



CHAPTER 8 
Stenographers 
§ 4985. (§ 4447). Compensation in civil cases 

Assessment of Costs' against Public Treasury. — The court 
cannot assess the cost of stenographic reports against the 
public treasury in a civil case between private parties. 
Macris v. Tsipourses, 35 Ga. App. 671, 134 S. E- 621. 



SECOND TITLE 
Special Rights, Remedies, and Proceedings 



CHAPTER l 
Appeals 



ARTICLE l 
In What Cases Allowed 
§ 4998. (§ 4453). Appeals lie in what cases. 

Cross Reference. — See annotations to § 4742. 

§ 5000. (§ 4455). Appeal when to be entered. 

When Section Applicable. — Unless there are provisions 
made where a greater or less time is fixed for entering ap- 
peals in particular cases, the general provision of this sec- 
tion will control. Hughes v. State Board, 162 Ga. 246. 253, 
134 S. E. 42. 



ARTICLE 3 
Effect of Appeals 
§ 5015. (§ 4470.) Effects of appeal. 

Applied to Judgment of Justice's Court. — Upon appeal the 
judgment of justice's court remains operative with all of 
its incidents, save in so far as it is incapable of enforce- 
ment pending the appeal. Haygood v. King, 161 Ga. 732, 
132 S. E. 62. 

§ 5022. (§ 4477.) Arbitrators limited by sub- 
mission. 

Cited in United States Fidelity, etc., Co. v. Corbett. 35 Ga. 
App. 606, 612, 134 S. E. 336. 



CHAPTER 3 
Of Attachments 



ARTICLE 1 

Of i&suing Attachments 

§ 5056. (§ 4511.) By whom affidavit may be 
made. 

Cross Reference. — For affidavit as to garnishment, see § 
5269. 



§| 5094. (§ 4549). Garnishment^ how obtained. 

Cited in Owen v. Moseley, 161 Ga. 62, 64, 129 S. E- 787. 



ARTICLE 5 

Of Pleading and Defenses in Attachment 

§ 5107. (§ 4561.) No traverse shall delay plain- 
tiff. 

Disposal of Traverse. — Notwithstanding this section, a trav- 
erse to the grounds of attachment should be first disposed 
of, unless it be continued for cause. This provision of the 
Code simply means that nothing that works a continuance 
of the traverse only shall postpone the main case. Alvaton 
Mercantile Co. v. Caldwell, 34 Ga. App. 151, 128 S. E. 781. 

Effect of Finding Issue in Defendant's Favor. — When an 
issue on a traverse is found in favor of the defendant, all he 
gains is that the levy falls, and if a judgment is obtained on 
the merits it does not date from the time of the levy as 
provided by § 5124, but it would take lien on the property 
attached as well as on other property, from the date of the 
judgment only. Blakely Milling, etc., Co. v. Thompson, 34 
Ga. App. 129, 128 S. E- 688. 



ARTICLE 7 

Replevy and Disposition of Property Attached 

§ 5113. (§ 4567.) Defendant may replevy prop- 
erty, officer's duty. 

Cited in Blakely Milling, etc., Co. v. Thompson, 34 Ga. 
App. 129. 128 S. E- 688. 



ARTICLE 9 
Of Lien of Attachments, Judgment and Execution 
§ 5124. (§ 45780 Lien of attachments. 

Cross Reference. — See annotations to § 5107. 



CHAPTER 4 
Auditors 



ARTICLE 1 
Appointment and Powers 
§ 5127. (§ 4581.) Auditor instead of master. 

Applied as to reference to auditor by the judge of his own 
motion. Darien Bank v. Clifton, 162 Ga. 625, 134 S. E. 619. 

§ 5128. (§ 4582,) Auditor at law. 

Cited in Holston Box, etc., Co. v. Vonberg, 34 Ga. App. 
298, 129 S. E. 562. 

§ 5129. (§ 4583.) Powers of auditor. 

Cited in Ellis v. Geer, 36 Ga. App. 519, 520, 137 S. E- 290. 

§ 5139. (§ 4583.) Report may be recommitted. 

Cited in Holston Box, etc., Co. v. Vonberg, 34 Ga. App. 
298, 300, 129 S. E- 562. 



ARTICLE 4 

Hearing of Exceptions and Final Disposition of 

Case 

§ 5141. (§ 4595.) Jury trial, when. 

Right to Jury Trial without Demand in City Court. — This 
section is a general law, but must be construed with refer- 
ence to the local statute creating the city court of Lexing- 
ton, provided how a jury trial in causes pending therein may 
be dispensed with. It seems that the local statute would ap- 
ply to trials of exceptions of fact to an auditor's report; 
that is, there must be a demand for jury trial. Shehane v. 
Wimbish, 34 Ga. App. 608, 612, 131 S. E- 104. 

[112] 



§ 5146 



JUDGMENT AND COSTS 



§ 5216 



§ 5146. (§ 4600.) What evidence to be read 
to jury, and of verdict. 

Presumption and Burden of Proof. — Auditor's findings are 
prima facie true, and the burden of overcoming them is on 
the exceptor. McDonald v. Dabney, 161 Ga. 711, 712, 132 S. 
E). 547. 



CHAPTER ;> 
Bail in Actions for Personalty 
§ 5153. (§ 4607.) Perishable property, how sold. 

Applied as to amount of recovery in action of trover. Stand- 
ard Motors Finance Co. v. O'Neal, 35 Ga. App. 727, 134 S. 
E- 843. 

§ 5154. (§ 4608). Release of defendant without 
security, when. 

Time of Giving Notice. — The giving of "five days notice 
of the time and place of hearing," required by this section 
is not complied with by serving the plaintiff, on the first day 
of May, with notice of hearing on the fifth day of May fol- 
lowing. From the first day of May to the fifth day of May 
is only four days. Hardin v. Mutual Clothing Co., 34 Ga 
App. 466, 129 S. E. 907. 

Failure to Answer No Waiver. — Where a defendant peti- 
tions the court for a discharge, and the respondent fails to 
file a written answer to the petition, the respondent is not 
to be considered as in default, but may appear and introduce 
evidence in rebuttal of that offered by the petitioner. Har- 
ris v. Hines, 35 Ga. App. 414, 133 S. E- 294. 



CHAPTER 6 
Of Qlaims to Property in Execution 



ARTICLE 2 
When, Where, and How Tried 
§ 5170. (§ 4624.) Burden of proof on plaintiff. 

Applied in Peterson v. Wilbanks, 163 Ga. 742, 753, 137 S. 
E. 69; Blount v. Dunlap, 34 Ga. App. 666, 130 S. E. 693. 

Burden is on claimant, when defendant in fi. fa. is in pos- 
session to show his title to the property in defendant's pos- 
session. Jones Motor Co. v. Finch Motor Co., 34 Ga. App. 
399, 129 S. E. 915. 

Burden on Plaintiff in Fi. Fa. When Possession Unknown. 
—Where it does not appear in whose possession the property 
was found, the burden of proof is upon the plaintiff in fi. fa. 
Singer Sewing Mach. Co. v. Crawford, 34 Ga. App. 719, 131 
S. E. 103. 



CHAPTER 8 
Of the Writ of Certiorari 



ARTICLE 2 
How Obtained, and Proceedings Thereon 
§ 5181. (§ 4635.) From the court of ordinary. 

Noncompliance Ground of Dismissal. — Noncompliance with 
the requirements of setting forth "plainly and distinctly 
the error complained of," and failure to set forth the 
grounds of the motion for a new trial or attach them to the 
petition as an exhibit, is a ground for dismissal. East River 
Nat. Bank v. EHman, 36 Ga. App. 263, 136 S. E. 799. 

§ 5185. (§ 4639.) Bond and security to be given. 

IV. PAYMENT OF COSTS. 

Certificate — Sufficiency of. — A certificate made by the judge 
whose judgment is the subject matter of complaint, that 
"the petitioner has paid all accrued costs to this date in the 
sum of $9.25" is sufficient as a compliance with this section. 
Whitley v. Jackson, 34 Ga. App. 286, 129 S. E- 662. 

§ 5187. (§ 4641.) Affidavit in lieu of bond. 

What Must Affidavit State.— The affidavit should allege 
that owing to his poverty the affiant is unable to give the 
required security; merely stating that the affiant "is unable 

[1 



to give the security, as required by law," is not sufficient, 
and the affidavit not being amendable, the certiorari is void. 
Roberts v. Selman, 34 Ga. App. 171, 128 S. E- 694. 

§ 5188. (§ 4642.) Must be applied for in thirty 
days. 

Judgment Sustaining Demurrer Not Final Determination. 

—A judgment sustaining a demurrer to a petition, which 
grants leave to the plaintiff to amend on pain of dismissing 
the suit, is not a final judgment, and certiorari does not lie 
thereto. Messengale v. Colonial Hill Co., 34 Ga. App. 807, 
131 S. E. 299. 

§ 5190. (§ 4644.) Ten days notice to the ad- 
verse party. 

Immaterial Variance between Process and Record. — A de- 
fendant in certiorari being entitled only to written notice of 
the sanction of the writ of certiorari and the time and place 
of hearing, and not to service of a copy of any of the pro- 
ceedings, it is immaterial that a copy of the proceedings 
served, showed as surety upon the certiorari bond a name 
different from that appearing as surety upon such bond as it 
appeared of record. Whitley v. Jackson, 34 Ga. App. 286, 
129 S. E. 662. 

§ 5181. (§ 4645). Shall operate as a supersedeas. 

Cited in Hargett v. Columbus, 36 Ga. App. 628, 629, 137 S. 
E. 911. 

§ 5195. (§ 4646.) Answer filed five days before 
the first day of term. 

Applied in Heinz v. Backus, 34 Ga. App. 203, 205, 128 S. 
E. 915. 



ARTICLE 3 
Of the Answer, Hearing, Judgment and Costs 
§ 5196. (§ 4647.) Exceptions to answer. 

Certainty and Definilteness of Exceptions. — Exceptions must 
specify the defects. They must be so definite, apt, and cer- 
tain that the magistrate may be able to understand the ex- 
act nature of the deficiency. Maoris v. Tsipourses, 35 Ga. 
App. 671, 134 S. E. 621. 

Method Prescribed by Section Exclusive. — An incomplete 
answer to a writ of certiorari can be perfected only by ex- 
ceptions taken thereto in the manner prescribed by this sec- 
tion. Macris v. Tsipourses, 35 Ga. App. 671, 134 S. E- 621. 



SECTION 3 

Of the Judgment and Costs 

§ 5201. (§ 4652). Certiorari may be dismissed 
or returned. 

Returning Case — Verdict Contrary to Evidence. — In a case 

when the only error alleged is that the verdict is contrary 
to the law and the evidence, it is erroneous to render a final 
judgment in petitioner's favor; for the reason that in such 
a case the error complained of is not "an error in law which 
must finally govern the case." Tuten v. Towles, 36 Ga. App. 
328, 136 S. E. 537. 

Applied as to entering final decision where there is ques- 
tion of fact to be decided in the lower court. Strickland v. 
American Nat. Bank, 34 Ga. App. 549, 130 S. E. 598. 

Cited in Shehane v. Wimbish, 34 Ga. App. 608, 613, 131 S. 
E. 104; Flood v. Empire Inv. Co., 35 Ga. App. 266, 270, 133 
S. E- 60. 

§ 5203. (§ 4654.) Damage may be awarded. 

Cited in Flood v. Empire Inv. Co., 35 Ga. App. 266, 270, 
133 S. E. 60. 

§ 5209. (§ 4660.) Notice to owner. 

Time for Appointment of Assessor. — Construing together 
this section and sections 5218, 5216, and 5219, the landowner 
has until the day fixed for the hearing in the notice in which 
to appoint his assessors, which hearing shall not be less than 
fifteen days from the time of serving the notice. A different 
ruling is not required by the decision in City of Elberton v. 
Adams, 130 Ga. 501, 61 S. E. 18, decided by five Justices. 
Sheppard v. Edison, 161 Ga. 907, 132 S. E- 218. 

§ 5216. (§ 4667.) How service effected. 

See note to § 5209. 
13] 



§ 5218 



GARNISHMENTS 



§ 5265 



§ 5218. (§ 4669.) Direction and contents of 
notice. 

See note to § 5209. 

§ 52 19. (§ 4670.) When assessor to be ap- 
pointed by ordinary. 

See note to § 5209. 

§ 5229. (§ 4679). Appeal not to delay, when. 

Cited in Gaston Shunk Plow Co., 161 Ga. 287, 304, 130 S. 
E. 580. 



CHAPTER 9 
Condemnation of Private Property 



ARTICLE 4 

To What Condemnations Applicable, 
Appeal, Final Judgment, etc. 

§ 5240. Water-power owners may condemn. 

Editor's Note and General Consideration. — The question 
of the constitutionality of this section was suggested by 
counsel but not raised in Rogers v. Toccoa Elect. Power Co., 
163 Ga. 919, 137 S. E- 272. 

Effect of Furnishing Power in Another State. — A corpora- 
tion having the power of eminent domain under this section 
would not lose such power because it also furnished electric 
power in Tennessee. Rogers v. Toccoa Elect. Power Co., 163 
Ga. 919, 137 S. E- 272. 

Injunction — (Proper Remedy to Determine Power of Emi- 
nent Domain. — In a proceeding under this section the sole 
question to be passed upon by the assessors is the amount of 
compensation to be paid. In such proceedings the assessors 
can not pass upon the legal power of the company to institute 
such proceedings. The remedy of the landowner is to apply 
to a court of equity to enjoin the condemnation proceedings 
if they are unauthorized. Rogers v. Toccoa Power Co., 161 
Ga. 524, 526, 131 S. E- 517. 

What Determines "Public Use." — Whether a purpose is a 
public or private purpose within the meaning of the law 
relating to eminent domain does not depend on use or the 
amount of use by the public, but upon the right of the pub- 
lic to such use. Rogers v. Toccoa Elect. Power Co., 163 Ga. 
919, 137 S. E. 272. 

Applied in the case of electric power company. Rogers 
Toccoa Elect. Power Co., 163 Ga. 919, 137 S. E. 272. 

§ 5240(1). Condemnation of road or highway 
for power plant generating electricity. — Where 
any proceeding to condemn a public road or 
highway is instituted, if the same is a part of the 
State highway system, or jurisdiction or control 
thereof has been taken over or assumed by the 
State Highway Board or other State authority, 
the notice of intention to condemn shall be ad- 
dressed to and served upon the chairman of the 
State Highway Board or such other officer as 
may hereafter be vested with the supervision and 
control of said State highway system; and if 
said road or highway is under the supervision or 
control of county authorities, the notice of in- 
tention to condemn shall be addressed to and 
served upon the ordinary, chairman of the board of 
commissioners of roads and revenues, commis- 
sioner of roads and revenues, or such other 
officer as is by law vested with jurisdiction over 
and control of the public roads of the county in 
which said road to he condemned is located. The 
procedure in such condemnation of public roads 
and highways shall be the same as provided by 
the general laws of the State, as now embodied 
in section 5206 et seq. of the Code of Georgia and 
as the same may hereafter be amended, in so far 
as the same is not in conflict with the provisions 
of this section; and the public officer or officers 
to be notified and served as aforesaid shall act 



for and in behalf of the State or county, as the 
case may be, in the appointment of an assessor 
and in all other respects as provided in said gen- 
eral law of the State with respect to the owner 
or owners of property sought to be condemned. 
Provided, however, before any public road con- 
demned under the provisions of this section can 
be used by the 'condemnor, the new road, includ- 
ing any and all bridges and culverts that may be 
necessary as a part thereof, shall be laid out and 
constructed by the condemnor and by the con- 
demnor made ready for use by the public, all of 
which new construction shall be approved by the 
authorities having control of the road con- 
demned; and provided further that the terms 
"public road" or "public highway," whenever used 
in this section or section 5240 shall include not 
only highways and roads proper, but bridges, 
culverts, and appurtenances as well. Acts 19>27, 
p. 373. 

§ 5243. Condemnation for public roads. 

Additional Land for Road. — Whenever a public road is al- 
ready established, and it becomes necessary to condemn land 
for the purpose of grading, improving, turnpiking, paving, 
widening, or macadamizing the same, for the use and con- 
venience of the public, the county authorities must pursue 
the method laid down in this section. But when the State 
highway department wishes to condemn land for rights of 
way for State-aid roads, it is not required to, and can not, 
pursue this method. Cook v. State Highway Board, 162 Ga. 
84, 98, 132 S. E- 902. 



ARTICLE 5 

Condemnation on Petition of State or Federal 
Government 

§ 5246(1)| When petition authorized; proce- 
dure in case of doubt as to title. 

Proceeding in Rem — Parties. — Under this section the State 
Highway Board can, in one proceeding, condemn a right of 
way over two tracts of land, one owned by one of the plain- 
tiffs and the other owned by both plaintiffs, such proceeding 
being one in rem and not against individuals. In such a pro- 
ceeding all persons interested will be allotted the damages 
to which they are respectively entitled. Cook v. State High- 
way Board, 162 Ga. 84, 132 S. E. 902. 

The venue is in the county in which the land lies; but if 
the tract of land lies in two conties, such proceeding can 
be brought in the superior court of either county. Cook v. 
State Highway Board, 162 Ga. 84, 132 S. E. 902. 

Necessity of Condemning All of Defendant's Land in One 
Proceeding. — In a proceeding to condemn a right of way and 
approaches to a public bridge on one side of the river, it 
is not a good objection to said proceeding that the plaintiffs 
would be entitled to recover damages for their lands lying 
on the opposite bank of said stream, the proceeding not be- 
ing instituted to condemn a right of way over said lands. 
Cook v. State Highway Board, 162 Ga. 84, 132 S. E- 902. 

Recovery for Injury to Ferry Right. — If this proceeding 
damages the plaintiffs by destroying any rights of ferry 
which they might have over said river, such damages can 
be assessed in the present proceeding. Cook v. State High- 
way Board, 162 Ga. 84, 132 S. E. 902. 



CHAPTER H 
Garnishments 



ARTICLE 1 

How Issued and Served; Answer; and What Is 
Subject to 

§ 5265. (§ 4705). Garnishment. 

Suit Pending — When. — A suit is pending, within the mean- 
ing of this section, although a judgment may in fact have 
been rendered in the suit, when there still remains a legal 



[114] 



§ 5268 



PROCEEDINGS AGAINST INTRUDERS ON LAND 



§ 5382 



possibility that the judgment may be reversed, as when a 
bill of exceptions to the judgment has been tendered and cer- 
tified by the trial judge and has been filed with the clerk of 
the Court of Appeals. Carrollton Bank v. Glass, 35 Ga. App. 
89, 132 S. F. 238. 

§ 5268. (§ 4708). Garnishment, how obtained. 

Cross References. — See annotations to succeeding section, 
and annotations under section 4392. 

§ 5269. (§ 4709). How and by whom issued, 
etc. 

Time of Filing Answer. — Where the garnishee fails to an- 
swer at the first and the second terms of court, but files 
an answer on the first day of the third term before the gar- 
nishment case has been called on the docket and before a 
motion has been made by the plaintiff to enter a judgment 
obtained during the second term, such answer is not too 
late. Owen v. Moseley, 161 Ga. 62, 129 S. F,. 787. 

§ 5272. (§ 4712). What is subject to garnish- 
ment. 

Proceeds of Realty Sold by Execution. — Ifl executors, em- 
powered by will to sell lands of the decedent, sell them for 
the purpose of division, the proceeds are personalty, unin- 
pressed with the character of real estate, and therefore are 
subject to garnishment. Brown Guano Co. v. Bridges, 34 Ga. 
App. 652, 130 S. E. 695. 



such. The language of this section seems to admit of no 
other construction. Fairview Cemetery Co. v. Wood, 36 Ga. 
App. 709, 719, 138 S. F- 88. 

§ 5337(2). House of prostitution; house and 
contents a nuisance. 

Amendment Showing Abatement Pending Suit. — It was 

error to refuse to allow a verified amendment to the defend- 
ant's answer to a petition to enjoin him from conducting 
a nuisance in violation of this statute; the allegations of the 
amendment showing that the nuisance had been absolutely 
discontinued a few days after the beginning of the proceeding 
for injunction, and several weeks before the trial, and that 
all issues in the proceeding had become moot. (Two JJ. dis- 
sent.) Yancey v. State, 161 Ga. 138, 129 S. F. 642. 



ARTICLE 4 

Answer, Traverse, Claim, and Judgment 

§ 5281. (§ 4719.) Answer or garnishee and 
judgment. 

When Judgment May Be Entered on Dissolution Bond. — 

Where a garnishment is sued out pendente lite by the plain- 
tiff and dissolved by the defendant, there can be no judg- 
ment rendered on the bond given to dissolve the garnishment 
until after judgment is rendered in the main action in favor 
of the plaintiff against the defendant therein. Cone v. Glid- 
den Stores Co., 36 Ga. App. 246, 136 S. F- 170. 

Default Judgment against Garnishee. — Where a garnish- 
ment has been dissolved by the defendant in the main case, 
if the garnishee fails or refuses to answer, judgment by de- 
fault may Be rendered against him for such amount as may 
have been obtained by judgment against the defendant; and 
upon such judgment against the garnishee being entered, 
judgment may be had for the amount thereof against the 
defendant and the sureties on the bond to dissolve the gar- 
nishment. Carpenter v. Bryson, 35 Ga. App. 622, 134 S. F- 180. 

§ 5282. (§ 4720). Claimants may dissolve 
garnishment. 

Cited in Tarver v. Jones, 34 Ga. App. 716, 131 S. E. 102; 
Johnson v. Planters Bank, 34 Ga. App. 241, 129 S. F. 125. 



CHAPTER 15 

Officers of Court, Rules Against 

§ 5346. (§ 4774). Rules nisi against officers. 

Cited in Gaston v. Shunk Plow Co., 161 Ga. 287, 297, 'l30 
S. F. 580. 

§ 5347. (§ 4775). Answer to rule nisi, and sub- 
sequent proceedings. 

Traverse of Answer. — Traverse of answer to remedial pro- 
ceeding for contempt is not necessary, and the court can 
hear, without such traverse, the evidence «to determine 
whether the defendant has or has not violated the order of 
the court. Gaston v. Shunk Plow Co., 161 Ga. 287, 297, 130 S. 
F. 580. 



CHAPTER 16 
Of Partition 



CHAPTER 12 
Of the Illegality of Executions 
§ 5306. (§ 4737). No illegality until after levy. 

Applied in Carter v. Alma State Bank, 34 Ga. App. 766, 131 
S. F. 184. 

§ 5308. (§ 4739). Damages for delay only. 

Damages Assessed When Portion of Affidavit Dismissed. — 

Where a portion of an affidavit of illegality has been dismissed 
on demurrer for insufficiency, and the remainder is admitted 
to be incorrect, 'the jury may be authorized to infer from 
this that it was filed for delay only, and a verdict assessing 
damages in favor of the plaintiff in execution, at less than 
25% of the principal debt, will not be disturbed, where' 
there is any evidence to support it, unless for some material 
error of law. Felker v. Still, 35 Ga. App. 236, 133 S. F- 519. 



ARTICLE l 
General Principles 
§ 5355. (§ 4783). Partition, 

Necessity of Peculilar Circumstances. — Where no peculiar 
circumstances are shown, equity will not take cognizance 
of a partition suit. Safford v. Anderson, 162 Ga. 408, 134 
S. F- 81. 



CHAPTER 18 

Tresspassers on Land and Tenants Holding 
Over 



ARTICLE l 

Proceedings Against Intruders on Land and 
Tenants Holding Over 



CHAPTER 14 
Nuisances and Their Abatement 
§ 5329. (§ 4760) May be removed, and how. 

Necessity of Actual Existence of Nuisance. — This and the 
following sections were not intended to afford a remedy 
against that which is not an actually existing nuisance, as 
distinguished from that which may or probably will become 

[1 



SECTION 1 
Proceedings Against Intruders 
§ 5380- (§ 4808). Intruders, how ejected. 

Bona Fide Claim to Possession Good Defense.— That the 

alleged intruder claims the legal right to possession of the 
land in good faith is a legal defense against eviction under 
such process. Hill v. Security Loan, etc., Co., 35 Ga. App. 
93, 132 S. F. 107. 

Necessity of Process and Returni. — Under this section, no 
process or return of service is ' required. ■ Hill v. Security 
Loan, etc., Co., 35 Ga. App. 93, 132 S. F- 107. 

§ 5382. (§ 4810). Return of affidavit and trial- 

Trial at What Term.— The proceeding under section 5380 
being strictly summary and there being no provision as to 
when an issue formed upon a counter-affidavit to such a 
proceeding under this section may be tried, the trial of such 
an issue may be held at the term of court during which the 
counter-affidavit is filed. Hill v. Security Loan, etc., Co., 
35 Ga. App. 93, 132 S. F. 107. 

15] 



§ 5389 



RECEIVERS 



§ 5479 



SECTION 2 

Proceedings Against Tenants Holding Over 

§ 5389. (§ 4817). Double rent and writ of 
possession, when. 

Denjand for Rent. — It is not essential that the plaintiff 
should prove a demand for payment of the rent prior to the 
institution of the proceeding. Moore v. Collins, 36 Ga. App. 
701, 138 S. E- 81, and cases cited. 

Time from Which Rent Runs. — Where the tenant files a 
counter-affidavit and bond, he may be charged with double 
rent, or double the rental value of the property, as the case 
may be (see Stanley v. Stembridge, 140 Ga. 750, 79 S. E. 
842), from the date of the demand for the premises, or, if 
such date is not shown, from the date of the issuance of the 
dispossessory warrant, provided the plaintiff is entitled to 
prevail in such case. Moore v. Collins, 36 Ga. App. 701, 138 
S. E- 81, and cases cited. 

Effect of Receivership of the Property upon Payment of 
Double Rent. — Whether or not double rent is uncollectioie 
for a period during which the rented premises are in posses- 
sion of a receiver, the pendency of the receivership will pre- 
vent the collection of double rent only when the control and 
possession of the property by the receiver prevented the 
tenant from moving out and surrendering the rented premises 
to the landlord. Graf v. Shiver, 36 Ga. App. 532, 137 S. E. 
283. 



• THIRD TITLE 

Extraordinary and Equitable Remedies and 
Pleadings 



CHAPTER l 

Joinder of Legal and Equitable Causes 

§ 5406. (§ 4833). Equitable or legal rights, 
remedies applied. 

III. OPERATION UPON SUBJECT MATTER. 

Petition Not Demurrable on Certain Grounds.— Since the 

passage of this section a petition which sets forth a legal 
cause of action, though using terms appropriate to an equit- 
able proceeding, is not demurrable on the grounds (a) that 
it sets forth no cause of action (b) that there is no equity 
in the petition, and (c) that the plaintiff has an adequate 
remedy at law. Smith v. Hancock, 165 Ga. 222, 136 S. E- 52. 

§ 5407. (§ 4834). Equitable relief from the 
court. 

Amendment seeking equitable relief in common law suit 
allowed. Moon v. First Nat. Bank, 163 Ga. 489, 136 S. E. 433. 

§ 5411. (§ 4838). New parties and extraordinary 
remedies for defendant. 

Amendment of Bill of Exceptions Filed by New Party, Al- 
lowed.— McMillian v. Spencer, 162 Ga. 659, 134 S. E- 92L 
Maker's Rights in Action upon the Note by Transferee. — 

In an action upon a note by the transferee thereof against 
the maker, the latter can set up his defenses against the 
payee, and also can make the payee a party to the suit. Mc- 
Millan v. Spencer, 162 Ga. 659, 134 S. E- 921. 



CHAPTER 2 
Parties in Equitable Proceedings 
§ 5417. (§ 4844). Parties. 

Judgment Creditor as Party Defendant. — In Swift & Co. v. 
First Nat. Bank, 161 Ga. 543, 549, 132 S. E- 99, it was held 
that the judgment creditor was properly joined as defendant, 
in a suit for injunction by mortgagee to prevent the sale of 
the property under levy. 



CHAPTER 3 
Trial and Its Incidents 
§ 5423. (§ 4850). Special verdicts and costs. 

Costs in chancery do not always follow the event of the suit, 

[1 



but are awarded according to the justice of the cause. They 
rest in the sound discretion of the court, to be exercised 
upon full view of the merits and circumstances of the case. 
Peninsular Naval Stores Co. v. Culbreth, 162 Ga. 474, 134 S. 
E. 608. 

(a) In an equity case it is the province of the judge to 
determine upon whom the costs shall fall, (b) Auditor's fees 
may, in the discretion of the court, be apportioned between 
the parties, (c) The stenographer's fee for reporting the 
evidence in a case shall be paid upon such terms as the 
parties may agree upon; and if no agreement is entered into 
as to the payment thereof, then in such manner as may be 
prescribed by the presiding judge. McDonald v. Dabney, 
161 Ga. 711, 132 S. E- 547. 



CHAPTER 4 

Decrees 
§ 5426. (§ 4853). Decrees and remedies. 

Cited in Swift & Co. v. First Nat. Bank, 161 Ga. 543, 550, 
132 S. E- 99: Gore v. Humphries, 163 Ga. 106, 114, 135 S. E 

481. 

§ 5429. (§ 4856). Confirmation of sale under 
decree. 

Applied.— Wingfield v. Bennett, 36 Ga. App. 27, 134 S. E- 
840. 



CHAPTER 6 
Of Extraordinary Remedies 



ARTICLE l 
Mandamus, Quo Warranto, and Prohibition 
§ 5443. (§ 4870). When not granted. 

Proper Remedy Should Be Resorted to in Lieu of Manda- 
mus. — Where it appears that the applicant had a remedy for 
any error of the ordinary, he can not neglect the remedy and 
afterwards resort to mandamus proceedings. Sharp v. Mc- 
Alpin, 162 Ga. 159, 161, 132 S. E- 891. 

§ 5445. (§ 4872). Facts in issue, how and 
when tried. 

Applied.— Browne v. Benson, 163 Ga. 707, 137 S. E- 626. 



ARTICLE 4 
Receivers 
4900). Receiver, when an officer 



§ 5475. (§ 
of the court. 

Enforcement of Delivery of Property to Receiver. — A judge 
may, in vacation, enforce the delivery of fund or property 
to the receiver, by attaching and imprisoning any party 
refusing obedience to his order. Coker v. Norman, 162 Ga. 
351, 133 S. E- 740. 

§ 5477. (§ 4902). Power of appointment to be 
cautiously exercised. 

Receiver in Divorce and Alimony Case. — In a suit for di- 
vorce and alimony, under the circumstances of the case, the 
prayer for appointment of receiver of the husband's property 
was denied in view of this section. Reeve v. Reeve, 163 Ga. 
95, 135 S. E. 434. 

General Creditor May Not Enjoin Debtor. — In view of this 
section and section 5495 creditors without lien cannot, as a 
general rule, enjoin their debtors from disposing of property, 
or obtain injunction or other extraordinary reiief in equity. 
Dixie Metal Products Co. v. Jones, 163 Ga. 70, 135 S. E. 406. 

§ 5479. (§ 4904). Receivers, when appointed. 

Appointment without Hearing. — The grant of a temporary 
injunction and the appointment of a receiver, without a 
hearing and without sufficient grounds is erroneous. Board 
v. Municipal Securities Corp., 161 Ga. 634, 131 S. E- 495. 

16] 



§ 5491 



VENUE 



§ 5527 



CHAPTER 7 
Injunctions 



ARTICLE l 

When Granted 

§ 5491. (§ 4914). Administration of criminal 
laws, no interference by equity. 

Proceedings under Ordinances. — Notwithstanding this sec- 
tion where an ordinance illegal and unreasonable in itself is 
"being enforced by prosecution which would deprive a man of 
his property, or destroy the carrying on of his lawful busi- 
ness, a court of equity will interfere, specially where the au- 
thorities are giving to it an interpretation not authorized by 
its language. Lilburn v. Alford Bros., 163 Ga. 282, 284, 136 S. 
E- 65. 

§ 5495. (§ 4918). Creditors without liens. 

Cross Reference. — See annotations to § 5477. 

A creditor having a justice's court judgment from which 
ah appeal has been taken, and who is otherwise entitled to 
injunctive relief, does not come within the provisions of this 
section. Haygood v. King, 161 Ga. 732, 132 S. E- 62. 

§ 5499. (§ 4022). Injunction can not compel. 

Mandatory Injunction. — An injunction dispossessing one 
party and admitting another to possession is equivalent to a 
mandatory injunction, which is not within the proper scope 
•of injunction. Injunction is not available for the purpose of 
accomplishing an eviction, or to prevent interference with 
realty by one already in possession. Beck v. Kah, 163 Ga. 
365, 136 S. E- 160; Burns v. Hale, 162 Ga. 336, 133 S. E- 857. 



ARTICLE 2 

Procedure in Injunction Cases 

§ 5501. (§ 4924). Injunctions, in what manner 
granted. 

As to temporary injunction without hearing, see annota- 
tions to sec. 5479. 

§ 5502. (§ 4925). The hearing, writ of error, 
judge's order. 

Application to Interlocutory Injunction. — A bill of exceptions 
will lie to the grant of an interlocutory injunction under this 
section, and there is no merit in the motion to dismiss the 
bill of exceptions on the ground that it "does not except to 
any judgment or ruling upon any issue that is final in the 
case." Brindle v. Goswick, 162 Ga. 432, 134 S. E. 83. 

Extent to Which Supersedeas Operates. — One method of ob- 
taining a supersedeas is that provided in this section. This 
method is applicable in cases in which injunctions are 
granted or dissolved. In such a case either party may sue 
out a writ of error to the Supreme Court from a decision 
against him, upon complying with the law applicable to the 
same; but no such writ of error shall have the effect to 
establish or deny any injunction independently of the order 
of the judge. Tift v. Atlantic Coast Line R. Co., 161 Ga. 
432, 447, 131 S. E. 46. 

§ 5504. (§ 4927). In application to enjoin cut- 
ting timber. 

Cited in Chappie v. Hight, 161 Ga. 629, 632, 131 S. E. 505. 



FOURTH TITLE 
Of Actions 



CHAPTER 1 
General Principles 
§ 5513. (§ 4936). Implied obligations to pay. 

Advancement or Loan. — Where the person making an ad- 
vancement to a husband is a brother of the dead wife, 
the advancement, if made voluntarily by him and without 
a request from the husband, is inferably a gift, and there 
■does not arise as a matter of law any implied promise on 



the part of the husband to repay the money thus advanced. 
But where the advancement is made at the request of the 
husband, either express or implied, although there is no 
express promise to repay, an implied promise by the hus- 
band to repay is inferable. Lovett v. Allen, 34 Ga. App. 
385, 129 S. E. 897. 

§ 5514 (§ 4937). Joinder of legal and equitable 
actions. 

Editor's Note and General Consideration. — Jackson v. 
Mathis, 35 Ga. App. 178, 132 S. E. 410, following the state- 
ment in the Code of 1926 taken from Lacher v. Manley, 139 
Ga. 80, 78 S. E- 188. 

§ 5516. (§ 4939). Parties to actions on con- 
tracts. 

See annotation to sees. 4460 and 5689. 

Exceptions to Section. — To this general rule there are ex- 
ceptions. Where' the purchaser of the assets of a firm agree 
to pay their debts, a creditor of the firm can by bill, to 
which the partners and purchasers are parties, enforce this 
agreement for his benefit. Bell v. McGrady, 32 Ga. 257. So 
where a married woman, having separate property, and be- 
ing indebted to another by note, conveyed her separate es- 
tate absolutely to others in consideration of their agree- 
ment to pay her an annuity for life and all debts against her 
separate property, the agreement may in equity be enforced 
by her creditors. Reid v. Whienant, 161 Ga. 503, 507, 131 
S. E- 904. 

Ownership. — The assignee of a mortgage may enforce it 
against the purchaser of the property who assumes payment. 
Reid v. Whisenant, 161 Ga. 503, 507, 131 S'. E. 904. 

Cited in Young v. Certainteed Prod. Corp., 35 Ga. App. 
419, 133 S. E. 279. 

§ 5520. (§ 4943). Consolidation of cases. 

Creditor Suits against Administratrix. — Where after sev- 
eral suits are separately filed by judgment creditors of the 
estate of a decedent against the administratrix and the 
sureties on her bond, a receiver is appointed, under another 
proceeding, to take charge of the estate, and where, after 
his appointment the court, by consent of parties, passes an 
order consolidating all the cases pending against the ad- 
ministratrix and the sureties on her bond, directing that 
they shall all proceed in the name of the receiver as plain- 
tiff, there is but one case for trial. Ellis v. Geer, 36 Ga. 
App. 519, 137 S. E- 290. 

Cited in Don v. Don, 162 Ga. 240, 243, 133 S. E- 242. 

§ 5521. (§ 4844). Different claims may be 
joined. 

Actions Which May Be Joined. — A count against a former 
employer refusing to return an account book to the plain- 
tiff, is one in tort, and hence properly joined with a count 
for conversion of the book, under this section. Richards v. 
International Agri. Corp., 10 Fed. (2d), 218. 

Exception to Section. — The exception to this rule is where 
equitable principles are involved, such as insolvency or non- 
residence of the plaintiff. In such cases, where the court 
has equitable jurisdiction, the general rule does not obtain, 
and it is permissible to set up a defense founded either in 
tort or on contract in response to a suit of either nature. 
But where the court has not equitable jurisdiction, and the 
suit is filed, for example, in a city court, such a court has 
jurisdiction of such a dissimilar and equitable plea only 
when it is purely defensive in its nature, and, if sustained, 
would result in a verdict finding generally in favor of the 
defendant. Porter v. Davey Tree-Expert Co., 34 Ga. App. 
355, 357, 129 S. E- 557. 

§ 5522. (§ 4945). Concurrent suits. 

Cited and applied in Nix v. Citizens Bank, 35 Ga. App. 55, 
56, 132 S. E- 249; Chappie v. Hight, 161 Ga. 629, 630, 31 S. 
E. 505. 



CHAPTER 2. 

Actions, Where and How Brought. 

ARTICLE l 

Of the Venue 

§ 5527. (§ 4950.) Equitable proceedings, venue. 

Instances Where General Rule of Section Applied. — Suit to 
recover possession of land and damages for cutting timber, 
and for equitable relief relating to land and timber. Brindle 
v. Goswick, 162 Ga. 432, 134 S. E. 83. 

117 ] 



§ 5539 



DEFENSES, PLEAS, ETC. 



§ 5627 



But an equitable action jointly against the vendee, in an 
invalid reservation contract, and his transferee, brought in 
the county of the transferee's residence, to recover as in 
trover the article sold, and to reform the contract so as to 
make it include a description of that article, did not lie for 
lack of jurisdiction. Flemming v. Drake, 163 Ga. 872, 137 S. 
E- 268. 



ARTICLE 3 
Suits, How Commenced 



SECTION 1 
The Petition 
§ 5539. (§ 4961). Petition to be pragraphed. 

Cited in Pape v. Woolford Realty Co., 35 Ga. App. 284, 
134 S. E. 174, and Cochran v. Carter, 35 Ga. App. 286, 132 
S. E. 921. 



SECTION 2 
Exhibits 
§ 5541. (§ 4963). Copies, exhibits, etc. 

Editor's Note and General Consideration. — A contract re- 
ferred to in note need not be set out where the note and 
not the contract constitutes the cause of action. Reed v. 
Colonial Hill Co., 34 Ga. App. 48, 128 S. E. 201. 

There is full compliance with this section where the peti- 
tion sets forth, as to each of the notes sued on, the date, 
amount, maturity, rate of interest, and date from which 
it runs, and attaches a specimen copy, with the further 
statement that each of the notes sued on is otherwise identi- 
cal in form. Reed v. Colonial Hill Co., 34 Ga. App. 48, 49, 
128 S. E. 201. 

In Heyward v. Ramsey, 35 Ga. App. 472, 473, 134 S. E. 
119, the court said: "Though the petition alleges that the 
amount due the plaintiff was for services rendered 'as per 
contract,' it was not necessary to attach a copy of the 
contract." 



tion it is not necessary for the plaintiff to plead estoppel. 
Every fact pleaded in an answer as true is treated as de- 
nied by the plaintiff, and evidence may be introduced in be- 
half of the plaintiff to rebut, controvert, or otherwise show 
that for any reason the defense pleaded is not good against 
the plaintiff's claim. But in a case where the defendant 
relies upon estoppel as a defense, it must be pleaded because 
other sections of this act require that the defense be plainly 
and clearly presented. Brown v. Globe, etc., Fire Ins. Co., 
161 Ga. 849, 854, 133 S. E. 260. 



SECTION 5 
Dismissal of Petitions 
§ 5548. (§ 4970). Dismissal of petition. 

Exception to Section.— A petition for habeas corpus is an 
exception to the operation of this section. Hence, a peti- 
tioner in a habeas corpus proceeding has no right to deprive 
the court of jurisdiction, after jurisdiction has once at- 
tached, by a voluntary dismissal. Collard v. McCormick, 
162 Ga. 116, 124, 132 S. E- 757. 



(§ 4985). Service of process, how 



ARTICLE 5 
In Ejectment 

§ 5576. (§ 4998). Mesne profits, no separate 
suit for. 

Cited in Treadway v. Harris, 34 Ga. App. 583, 585, 130 S. 
E- 827. 

§ 5579. (§ 5001.) True claimant made defendant. 

Defendant Not Bound by Judgment When Not Made a 
Party. — A judgment in a former suit for land in which the 
defendant was not a party and was not notified or made a 
party under this section, is not admissible in evidence' 
against the defendant in a later suit for the land. Harrison 
v. Hester, 163 Ga. 250, 251, 135 S. E. 845. 

§ 5585. (§ 5007.) The consent rule. 

Actions to Which Limited. — The consent rule set out in 
this section is applicable only to actions of ejectment brought 
in the fictitious form. Horn v. Tow son, 163 Ga. 37, 135 S. 
E. 487. 



ARTICLE 6 
Against Joint, and Joint and Several Contractors 



ARTICLE 4 

Filing, Process, and Service. 

§ 5557. (§ 4979). Copy of publication to be 
filed. 

Generally.— See Faughnan v. Bashlor, 163 Ga. 525, 136 S. 
E- 545, following the note in the Georgia Code of 1926. 

§ 5563. 
made. 

See annotations to section 4717. 

§ 5566. (§ 4988). Entry of sheriff may be trav- 
ersed. 

Pleading — Affidavit of Illegality. — Where an affidavit of 
illegality is based upon the ground that the affiant was not 
served in the suit, and where the affidavit sets forth a re- 
turn of service by the sheriff and a traverse of such return 
by the affiant, and it is not alleged in the traverse that 
the traverse was made at the next term of the court after 
the affiant had notice of the sheriff's return, the affidavit 
of illegality is subject to dismissal on demurrer. Knight v. 
Jones, 63 Ga. 481; Clements v. Haskins, 35 Ga. App. 484, 134 
S. E- 125. 

§ 5573. (§ 4995). Special pleading not admitted. 

Effect of Section upon Pleading Estoppel. — Under this sec- I 

[1 



CHAPTER 3 
Making Parties Pending Action 

§ 5601. (§ 5019.) Parties made in term or va- 
cation. 

Time at Which Rule Returnable. — No time is prescribed 
at which the rule shall be returnable. That time is left to 
the discretion of the court. Upon return of the rule the 
judge can do no more than allow or refuse to allow the re- 
spondent to be made a party. McMillan v. Spencer, 162 Ga. 
659, 663, 134 S. E. 921. 

§ 5602. (§ 5020.) Time of trial where parties 
made. 

Applied in McMillan v. Spencer, 162 Ga. 659, 663, 134 S. 
E- 921. 



CHAPTER 4 
Abatement, Retraxit, Dismissal, and Removal of 

Actions 

§ 5623. (§ 5041). Death of one of several de- 
fendants. 

Death after Reference to Auditor. — Under this section the 
death of one of the defendant sureties after the filing of a 
suit against principal and sureties on an adminitrator's 
bond, and after a reference of the case to an auditor, ^ but 
before the hearing by the auditor, does not abate the suit or 
deprive the auditor of jurisdiction. Ellis v. Geer, 36 Ga. App. 
519, 137 S. E- 290. 

§ 5627. (§ 5044.) Actions may be dismissed at 
any time. 

See annotations to section 5548. 



FIFTH TITLE 
Of Defenses and Proceedings Pending Action 



CHAPTER l 
Defenses, Pleas, Etc. 



18] 



§ 5628 



NON EST FACTUM, ETC. 



§ 5678 



ARTICLE l 

.General Provisions 

§ 5628. (§ 5045.) Sufficiency of petitions and 
pleas determined at first term. 

Effect of Order Allowing Time for Amendment.— An order 
declaring that the petition would be dismissed unless 
amended within a given time could not operate as a final 
judgment of dismissal, and upon the amendment of the 
petition the merits of the case could be determined. Smith 
v. Bugg, 35 Ga. App. 317, 133 S. E- 49. 

§ 5631. (§ 5048.) Demurrer, grounds of. 

When Proper — Grounds for Special Demurrer. — While mul- 
tifariousness is a ground of demurrer under this section it 
is not favored by the courts. Smith v. Hancock, 163 Ga. 
222, 233, 136 S. E. 52. 

§ 5633. (§ 5050.) Demurrer to pleas. 

See annotations to sec. 5573. 

§ 5638. (§ 5055.) Verified petition requires veri- 
fied plea. 

Authority of Corporate Officer. — Sworn averments as to 
agency or authority of corporate officer, to make the affida- 
vit, is not required. Georgia Lumber Co. v. Thompson, 34 
Ga. App. 281, 129 S. E. 303. 

§ 5647. (§ 5063.) Replication and order for trial. 

See annotations to section 5573. 

§ 5649. (§ 5065.) No part to be stricken out. 

Applied in Home Ins. Co. v. Swann, 34 Ga. App. 19, 26, 
128 S. E. 70. 

§ 5650. (§ 5066.) Pleas of non est factum must 
be sworn to. 

Applied in Wier v. Armour Fertilizer Works, 34 Ga. App. 
461, 129 S. E- 915. 

§ 5651. (§ 5067.) Petition and answer make is- 
sue. 

See annotations to § 5573. 

§ 5652. (§ 5068.) Effect of amendment. 

Immaterial Amendment. — While the filing of a material 
amendment to the petition after the case has been entered 
"in default" will open the default so as to give the defend- 
ant full right to plead, the filing of an immaterial amend- 
ment, whether before or after the entry of default, will not 
affect the validity of the judgment rendered, since the 
judgment cures any defective statement of the original cause 
of action. Henderson v. EUarbee, 35 Ga. App. 5, 131 S. 
E. 524. 

Applied in Land v. Pike's Peak Lumber Co., 35 Ga. App. 
159, 132 S. E- 644; Taylor v. Keown, 36 Ga. App. 631, 634, 
137 S. E. 907. 



ARTICLE 2 
Judgment by Default 
§ 5653. (§ 5069.) Call of appearance-docket. 

When Section Applies. — If on the call of the appearance 
docket at the appearance term a case is called in which the 
defendant has filed no demurrer, plea, or answer, and the 
judge marks the case on the docket "in default," such entry 
by the judge on the docket is a judgment that the case is 
in default. But such an entry is not a "judgment by de- 
fault." At most it can only be a judgment that the case 
is "in default" and in no sense is a rendition of a final judg- 
ment against the defendant in response to the prayers of 
the petition. Love v. National Liberty Ins. Co., 157 Ga. 259, 
262, 121 S. E. 648; Fraser v. Neese, 163 Ga. 843, 137 S. E. 
550. 

Effect of Agreement Extending Time. — The private stipu- 
lation between the parties is not binding on the court, or op- 
erative as extending the time provided by statute for filing 
a defense. Fraser v. Neese, 163 Ga. 843, 137 S. E. 550. 

Same — Manner of Taking Advantage of Agreement. — Not- 
withstanding an agreement between the parties for a con- 
tinuance, the defendant must appear before the court and 
ask for a continuance as provided by law, or after being 
marked "in default" must proceed as prescribed to open 
the default. If he fails to follow such procedure the court is 

[1 



without power to open it at a following term. Fraser v. 
Neese, 163 Ga. 843, 137 S. E- 550. 

Power of Clerk to Alter Entry. — If after an entry by the 
judge at the appearance term the clerk of the court during 
the same term, without direction or authority from the 
judge, erases the entry "in default" of the docket by draw- 
ing a line through it, such action upon the part of the clerk 
should be treated as a mere clerical act insufficient in law 
to modify or alter the default judgment entered by the judge. 
Fraser v. Neese, 163 Ga. 843, 137 S. E- 550. 

Irregularity of Second Entry as Affecting First. — The orig- 
inal entry of default made by the judge at the first term is 
not affected by the fact that an entry is made at a subse- 
quent term by virtue of an ex parte order of the judge eve., 
though the second entry might be irregular because the 
defendant was not given a hearing. Fraser v. Neese, 163- 
Ga. 843, 137 S. E. 550. 

§ 5654. (§ 5070.) Opening default. 

Effect of Failure to Make Proper Showings. — The movants 
having failed to comply with the provisions of this and the 
following section by not making the proper showing, it can 
not be held that the court erred in denying the application, 
especially as it does not appear that there was an abuse of 
the discretion which the trial judge exercises over the 
whole matter. Henderson v. EUarbee, 35 Ga. App. 5, 131 S. 
E. 524. 

§ 5656. (§ 5072.) Opening default at trial term. 

Discretion of Court. — See Strother v. Harper, 36 Ga. App. 
445, 446, 136 S. E- 828, following statement under this catch- 
line in Ga. Code of 1926. 

§ 5662. (§ 5078.) Verdict in suits in default. 

Direction of Verdict. — While the judge may ordinarily have 
no authority to render judgment without the verdict of a 
jury, except in cases referred to in this section, and section 
6516, this does not mean that, even in those cases where 
the verdict of a jury is necessary, the court may not di- 
rect it where it is demanded by the law and the facts. Pape 
v. Woolford Realty Co., 35 Ga. App. 284, 134 S. E- 174. This 
principle was applied with reference to a promissory note 
and collection of attorney fees in State Mut. Life Ins. Co. 
v. Jacobs, 36 Ga. App. 731, 137 S. E. 905. 

Cited in Cochran v. Carter, 35 Ga. App. 286, 132 S. E- 921. 



ARTICLE 3 
Particular Pleas 



SECTION 1 • 
To the Jurisdiction 
§ 5664. (§ 5080.) Jurisdiction, when admitted. 

Motion to Vacate after Verdict Not Waiver of Jurisdic- 
tion. — Where a nonresident learning that verdict and judg- 
ment had gone against him, first moved to vacate the ver- 
dict and judgment, the appearance by such motion after the 
rendition of the verdict and judgment is not such an ap- 
pearance as to amount to a waiver of jurisdiction. Christian 
v. Terry, 36 Ga. App. 815, 816, 134 S. E- 244. 

§ 5666. (§ 5082.) Contents of the plea. 

Allegation as to Lack of Jurisdiction Must Be Substan- 
tiated by Facts. — The caveat merely contains the statement 
that the court which passed the order adopting the children 
was without jurisdiction over them. The rules of good 
pleading require the allegation of facts to support this con- 
clusion. The allegation is that they were adopted by a 
court having no jurisdiction; and if the caveator desired to 
collaterally attack the adoption for want of jurisdiction in 
the court which did pass the order, the burden was upon 
him to allege in a proper plea such facts upon which he 
relied to deprive the court of jurisdiction. Harper v. Lindsey, 
162 Ga. 44, 47, 132 S. E. 639. 



SECTION 4 

Non Est Factum, etc. 

§ 5678. (§ 5094.) Pleas of former recovery and 
pendency of former suit. 

Cause Not Identical. — The pendency of an action for dam- 
19] 



§ 5681 



GENERAL PRINCIPLES OF EVIDENCE 



§ 5732 



ages brought by the plaintiffs against the counties of Tel- 
fair and Jeff Davis, for the wrongful taking and appropria- 
tion of a right of way over their lands for a public road and 
for a free public bridge, does not prevent the subsequent 
proceeding brought by the state highway to condemn their 
land for the same purposes. Cook v. State Highwav Board, 
162 Ga. 84, 96, 132 S. E. 902. 

Applied in Holston Box, etc., Co. v. Vonberg, 34 Ga. App. 
298, 129 S. E. 562. 



CHAPTER 2 
Of Amendments 



ARTICLE l 
General Principles 

§ 5681. (§ 5097.) Amendments of pleadings, 
when allowed. 

II. GENERAL CONSIDERATION. 

Setting Out Cause of Action. — This section, properly con- 
strued, means, that in order to admit of an amendment, a 
valid cause of action must be set forth in the original dec- 
laration. Macon v. Newberrv, 35 Ga. App. 252 132 S. E. 
917. 

IV. WHAT PLEADINGS AMENDABLE. 

Material Evidence Omitted from Exceptions. — Where 
within the time required by law a party files exceptions to 
the auditor's report, but neglects to set forth in connection 
with such exception the evidence necessary to be considered 
in passing thereon, or to point out the same by proper ref- 
erence, or to attach it as exhibits to his exceptions, such 
exceptions can be thereafter amended so as to cure these 
defects. Clements v. Fletcher, 161 Ga'. 21, 129 S. E. 846. 

§ 5682. (§ 5098.) Enough to amend by. 

Amendment Showing Insurable Interest. — A petition in a 
suit on a fire insurance policy may be amended to show the 
insurable interest of the plaintiff. Georgia Farmers Fire Ins 
Co. v. Tanner, 34 Ga. App. 809, 131 S. E. 191. 

§ 5683. (§ 5099.) New cause of action and par- 
ties not allowable. 

Editor's Note. — See Strachan Shipping Co. v. Hazlip- 
Hood Cotton Co., 161 Ga. 480, 483, 131 S. F- 283, quoting 
from the case referred to under this catchline in the Georgia 
Code of 1926. 

Instances of Amendments Allowable within Rule. — A new 
cause is not added where the consignor of goods in an action 
in tort for damages struck an allegation that the goods 
were lost and substituted an allegation that they were car- 
ried to a place other than the destination, sold and the pro- 
ceeds paid to another. Strachan Shipping Co. v. Hazlip- 
Hood Cotton Co., 161 Ga. 480, 131 S. F- 283. 

Adding New Parties. — New and distinct parties can not 
properly be added by amendment in a proceeding to remove 
obstructions from a private wav. Troup v. Tomberlin, 34 
Ga. App. 623, 130 S. F. 541. 

§ 5689, (§ 5105.) Usee's name added and one 
or more plaintiffs may be stricken. 

Initial Right to Bring Action as Prerequisite. — A plaintiff 
without the legal or equitable right to maintain a suit can- 
not amend so as to sue for the use of another. Ludlam 
Constr. Co. v. Cummings, 34 Ga. App. 786, 131 S. F. 191. 

This principle was applied in a suit by a materialman who 
attempted to substitute the obligee for his use where he im- 
properly brought suit in his own name against a compensated 
bonding company as surety, no indemnity being provided for 
the materialman in the bond. American Suretv Co. v. Bibb, 
162 Ga. 388, 134 S. F. 100. 



ARTICLE 2 
Particular Cases 

SECTION i 

Of Amending Verdicts, Judgments, and Execu- 
tions 

§ 5694. (§ 5110.) Amendment of verdict. 

Applied as to separating the amount of the principal and 



interest in a lump sum verdict. Morgan v. Colt Co., 34 Ga. 
App. 630, 130 S. F. 600. 

§ 5695. (§ 5111.) After dispersion of jury. 

See annotation to § 5694. 



SECTION 2 
Amending Official Returns 
§ 5701. (§ 5117.) May be made nunc pro tunc. 

Applied in Freeman v. Stedham, 34 Ga. App. 143, 128 S. F- 
702. 

SECTION 4 

Of Other Amendments 

§ 5706. (§ 5122.) Amendment of affidavits to 
foreclose, etc. 

The affidavit for garnishment is amendable by striking 
therefrom the words "for which judgment has been obtained," 
and inserting in lieu thereof the words "for which Is now 
pending." Carrolton Bank v. Glass, 35 Ga. App. 89, 132 S. 
F. 238. 

Applied to amendment of distress warrant which failed to 
allege that the tenant "is removing" or "seeking to remove ' 
his crops from the rented premises. Johnson v. Lock, 36 Ga. 
App. 620, 137 S. F. 911. 

§ 5707. (§ 5123.) Amendment of appeal and 
other bonds. 

The bond executed by an. applicant for garnishment, is 

amendable under this section. Where neither the obliga- 
tions of the sureties are altered nor the rights of the opposite 
party prejudiced, such bond may be amended in any man- 
ner to conform to the requirements of the statute, without 
the consent of the sureties. Carrollton Bank v. Glass, 35 
Ga. App. 89, 132 S. E. 238. 

Instances of Amendments to Appeal Bonds. — The execu- 
tion of a bond by the attorney in the attorney's own name 
tor the plaintiff by name, instead of in the name of the 
plaintiff by the attorney, is amendable. Whitley v. Jacksrm, 
34 Ga. App. 286, 129 S. E. 662. 

§ 5700. (§ 5125.) Clerical mistakes may be 
amended,. 

A clerical veriance in the name of the defendant as it ap- 
pears in the petition and the process is curable by amend- 
ment under this section. Grand Lodge Knights of Pythias 
v. Massey, 35 Ga. App. 140, 132 S. F- 270. 



CHAPTER 3 

Of Continuances 

§ 5710. (§ 5126.) But one continuance at com- 
mon law. 

Editor's Note and General Consideration.— The discre- 
tion in refusing a continuance was held not to be abused 
where a continuance had been granted at two previous 
terms and for one day at the third term. Camp v. Lanier, 
36 Ga. App. 54, 135 S, F- 224. See Yeates v. Yeates, 162 Ga. 
153, 132 S. F. 768, where a third continuance was refused. 



SIXTH TITLE 
Of Evidence 

CHAPTER 1 
General Principles 
§ 5732. (§ 5146.) How determined. 

Number of Witnesses. — The ruling that it might amount 

to reversible error, in charging the provisions of this sec- 
tion, to fail to include in the charge the provision that "the 
jury may also consider the number of witnesses, though the 
oreponderance is not necessary with the greater number, ' 
does not apply to a case where the number of witnesses on 



[120] 



§ 5736 



ADMISSIONS AND CONFESSIONS 



§ 5776 



both sides are the same. Atlanta Gas-Light Co. v. Cook, 
35 Ga. App. 622, 134 S. E. 198. 

§ 5736. (§ 5150.) Estoppels. 

II. ESTOPPEL BY RECORD. 

Admission in Pleadings. — In Duke v. Ayers, 163 Ga. . 444, 
453, 136 S. E- 410, the court said: "His answer was filed and 
became a part of the record in the cause in which the judg- 
ment issued. His admission of the non-payment of this judg- 
ment was a solemn admission in judicio that the judgment 
had not been paid. The court acted upon it and amended 
the judgment as prayed. By such admission, made in 
judicio, the plaintiff is estopped from asserting that he had 
paid off this judgment at a date prior to the making of suon 
admission." 

III. ESTOPPED BY DEED. 

Conclusiveness of Recital as to Consideration. — Ordinarily, 
where the statement in a deed as to its consideration is 
merely by way of recital, the actual consideration of the 
deed is subject to explanation; but if the consideration is 
referred to in the deed in such a way as to make it one of 
the terms or conditions of the contract, it can not be varied 
by parol. Sikes v. Sikes, 162 Ga. 302, 304, 133 S. E. 239. 

§ 5737. (§ 5151.) Estoppel as to title to real 
estate. 

If estoppel by acts or false declarations can in any case 
be the basis upon which to predicate the recovery of land, 
it falls clearly within the provisions of this section. Groover 
v. Simmons, 163 Ga. 778, 780, 137 S. E. 237. 

§ 5739. (§ 5153.) Trustees estopped to claim 
title adverse to estate. 

Executors. — Where the plaintiff maintained a suit for 
specific performance of the contract alleged, in which he 
sought to have decreed in himself title to the entire prop- 
erty owned by his testatrix at the time of her death, and 
devised by her and given to the executor (plaintiff) and 
other beneficiaries, it was held that he was estopped on the 
ground that he had had the will probated and qualified as 
executor, and continued in the office of executor for two 
years, during which time he had discharged the duties of 
his office and had paid out large sums of money; this con- 
duct being inconsistent with his claim of title to the entire 
estate of his testatrix. Hardeman v. Ellis, 162 Ga. 664, 135 
S. E. 195. 

Trustee of Corporations. — The principles of this section 
apply to a trustee holding choses in action for a corporation. 
Caswell v. Vanderbilt, 35 Ga. App. 34, 132 S. E. 123. 

§ 5740. (§ 5154.) Prima facie presumptions. 

Insanity shown once to have existed is, in the absence ol 
proof to the contrary, presumed to continue. Stanfield v. 
Hursey, 36 Ga. App. 394, 136 S. E. 826. 

§ 5743. (§ 5157.) Jury right to infer, what. 

Cited in Yellow Cab Co. v. Nelson, 35 Ga. App. 694, 696, 
134 S. E. 822. 



CHAPTER 2 
Of Rules Governing the Admission of Testimony 

ARTICLE 1 
General Rules 
§ 5744. (§ 5158.) Must be relevant. 

Editor's Note. — If the evidence offered by a party is of 
doubtful relevancy, it should nevertheless be admitted and 
its weight left to the jury. Even where irrelevant evidence 
is admitted over timely objection, it affords no cause for a 
new trial, unless the nature of the evidence is such as rea- 
sonably to prejudice the rights of the objecting party. Con- 
tinental Trust Co. v. Bank, 36 Ga. App. 149, 136 S. E. 319. 

§ 5745. (§ 5159.) Character and conduct of 
parties. 

Applied in Swinney v. Wright, 35 Ga. App. 45, 48, 132 S. 
E- 228. 

§ 5746. (§ 5160.) Burden of proof. 

The burden of proof of the lack of consideration to a con- 
tract falls upon the party asserting the defense. Bankers 
Trust v. Hanover Nat. Bank, 35 Ga. App. 619, 134 S. E. 195. 

F 12 



§ 5751. (§ 5165.) Positive and negative testi- 
mony. 

Credibility of Witnesses. — Carter v. State, 34 Ga. App. 
230, 129 S. E. 10, following Ga. Code 1926. 
Cited in Yeates v. Yeates, 162 Ga. 153, 132 S. E. 768. 

§ 5754. (§ 5168.) Officer de facto. 

Applied in Howell v. State, 162 Ga. 14, 134 S. E. 59 to 
establish that deceased was a deputy sheriff. 



Secondary evidence, when 



§ 5759. (§ 5172.) 
admitted. 

Accessibility or Diligence. — Beall v. Francis, 163 Ga. 894, 
137 S. E. 251, applying principle announced in Ga. Code 1926. 

Certified Copy of Marriage Contract. — It appearing from 
the record that both parties to an alleged marriage con- 
tract were dead, and that it could not be found among their 
papers the court did not err in admitting, as secondary evi- 
dence of the contents of such paper, certified copy of a 
record in the office of the clerk of the superior court of the 
county in which the maker of the instrument died. Beall v. 
Francis, 163 Ga. 894, 137 S. E. 251. 



ARTICLE 2 
Of Hearsay 
§ 5763. (§ 5176.) Sometimes original evidence. 

A memorandum found on the person of deceased was held 
admissible on trial for murder, as original evidence under 
this section. Etheridge v. State, 163 Ga. 186, 199, 136 S. E- 72. 

Applied in Davis v. Farmer's Bank, 36 Ga. App. 415, 422, 
136 S. E. 816; Alvation Mercantile Co. v. Caldwell, 34 Ga. 
App. 151, 128 S. E. 781. 

§ 5767. (§ 5180.) Declarations of persons in 
possession. 

Applied in Crider v. Woodward, 162 Ga. 743, 755, 135 S. E- 
95. 

§ 5769. (§ 5182.) Books of account. 

Order of Proof. — No foundation for their admission hav- 
ing been laid as required by this section the court did- not 
err in refusing to admit in evidence certain pages from the 
defendants' ledger. Kennedy v. Phillips, 34 Ga. App. 166, 
128 S. E. 779. 



Testimony of witness on for- 



§ 5773. (§ 5186.) 
mer trial. 

Inaccessibility. — Allen v» Davis, 34 Ga. App. 5, 128 
S. E- 74, applying principle stated in Ga. Code, 1926. 



ARTICLE 3 

Of Admissions and Confessions 

§ 5775. (§ 5188.) Admissions in pleadings, how 
far evidence. 

Pleadings Stricken or Withdrawn. — Where a part of a 
petition or of a plea is stricken by amendment, the stricken 
part may, if pertinent to any issue remaining in the case, 
be offered in evidence; but, unless so offered and admitted 
; n evidence, it is not evidence for the consideration of the 
jury or proper matter for argument of counsel, save only 
where the amendment is made after the evidence is closed. 
Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138, 33 S. 
E. 945; Alabama Mid. R. Co. v. Guilford, 114 Ga. 627, 40 
S. E. 794. A different rule is applicable to parts of plead- 
ings that are not stricken. Continental Trust Co. v. Bank, 
36 Ga. App. 149, 136 S'. E. 319. 

§ 5776. (§ 5189.) Parties to record. 

Admissions of Executors, etc. — On the investigation of an 
issue of devisavit vel non, the admission of an ex- 
ecutor before qualification, or of a legatee, unless tne 
sole legatee, shall not be admissible in evidence to impeach 
the will. To this general rule there is an exception: If 
the admission be in reference to the conduct or the acts of 
the executor or legatee himself as to some matter relevant 
to the issue on trial, the same will be admitted to impeach 
the will, although made by the executor before qualifica- 
tion, or by a legatee who is not the sole legatee. Brown v'. 
Kendrick, 163 Ga. 149, 135 S. E. 721. 

Same — Before Execution of Will. — Declarations made uy 

1] 



§ 5781 



COMPETENCY OF WITNESSES 



§ 5858 



a person before the execution of a will, but who is after- 
wards named therein as executor and a legatee, are inad- 
missible to impeach the will as those of an executor and 
legatee. Brown v. Kendrick, 163 Ga. 149, 135 S. E. 721. 

Declarations or admissions of the propounder of a will, 
made before the execution of the instrument and before he 
became clothed with the trust, are inadmissible to impeach 
the will when offered by caveators as the declarations or 
admissions of a party to the record. Brown v. Kendrick, 
163 Ga. 149, 135 S. E. 721. 

Declarations as to Title. — In the trial of a claim case dec- 
larations of a defendant in execution, made after the pen- 
dency of litigation and prior to the time of levy, but at a 
time when she was not in possession of the property levied 
on, that she owned such property, are not admissible as 
evidence and of no probative value even if admitted with- 
out objection. Nelson v. Brannon, 32 Ga. App. 455, 123 S. 
E. 735 and citations. McSwain v. Estroff, 34 Ga. App. 183. 
129 S. E. 16. 

§ 5781. (§ 5194.) Admissions improperly ob- 
tained. 

Applied in Duncan v. Bailey, 162 Ga. 457, 134 S. E- 87, 
to reject admission made with view of compromise. 

§ 5785. (§ 5189.) Confidential communications, 
etc. 

Communications Overheard Admissible. — Confidential 
communications between the husband and wife overheard by 
a third person are not excluded under this clause of this 
section. Sims v. State, 36 Ga. App. 266, 136 S. E- 460. 

Terms of Attorney's Contract. — The terms of an attoi - 
ney's contract do not come within the privilege provided by 
this section. Bank v. Farmers State Bank, 161 Ga. 801, 
816, 132 S. E. 221. 



ARTICLE 4 
Of Parol Evidence to Affect Written. 
§ 5788. (§ 5201.) General rule. 

Subsequent Agreement. — The rule of this section is not 
violated by proof of a new and distinct subsequent agree- 
ment in the nature of a novation. Wimberly v. Tannei, 
34 Ga. App. 313, 129 S. E. 306. 

§ 5790. (§ 5203.) Void instruments. 

Contract to Evade Usury, Penalty or Forfeiture. — It is 

always permissible to show by parol evidence that a paper 
is but a cover for usury, penalty, forfeiture, or other illegal 
advantage to one of the parties. For if the law did not 
sedulously disregard form and seek for substance, nothing 
would be easier than its evasion by giving innocent names 
to prohibited acts. Flood v. Empire Invest. Co.. 35 Ga. 
App. 266, 270, 133 S. E. 60. 

§ 5794. (§ 5207.) Other cases. 

Subsequent Agreement. — See note to sec. 5788. The new 
agreement contemplated by this section must be based upon 
a valuable consideration and embody the essentials of a 
new contract. Guthrie v. Rowan, 34 Ga. App. 671, 131 S. 
E. 93. 



CHAPTER 3 
Of Records and Other Written Evidence 



ARTICLE 1 

Of Records and Public Documents 

§ 5821. (§ 5234.) Effect of judgment on party 
vouched into court. 

Use of Former Judgment Where Party Was Vouched. — 

There is no error in introducing a judgment against a 
vendee of a stolen car, taking the car away from the vendee, 
in an action by the vendee against the vendor for the pur- 
chase money, where the vendee gave the vendor notice of 
the former suit and the vendor failed to defend. Barrett v. 
Miller, 36 Ga. App. 48, 135 S. E. HI. 



ARTICLE 2 
Of Private Writings 
§ 5833. (§ 5244.) Subscribing witness, excep- 



jection is only collaterally material, it falls within this ex- 
ception. Chance v. Chance, 163 Ga. 267, 135 S. E- 923. 

§ 5834. (§ 5245.) Other proof. 

Circumstantial Evidence. — The existence and genuineness 
of a deed may be proved by circumstantial evidence. 
Campbell v. Sims, 161 Ga. 517, 131 S. E. 483. 

§ 5836. (§ 5247.) Comparison of hands. 

Signatures. — The jury may render a verdict establishing 
*he genuineness of an instrument from a comparison be- 
tween the disputed signature and other signatures of the 
defendant which are admittedly genuine, and from evidence 
that the disputed signature "favors," "looks very mucn 
like," "bears a great resemblance to," and "is the same 
kind of handwriting" as the admittedly genuine signatures. 
Collins v. Glisson, 35 Ga. App. Ill, 132 S. E. 114. 



CHAPTER 5 
Of Oral Testimony 



tions. 

Bond for Title. 



-Where a bond for title admitted over ob- 



ARTICLE 1 
Of Witnesses, Their Attendance and Fees 
§ 5849. (§ 5260.) Subpoena. 

Appeal or New Trial — Letter as Notice. — Before the pre- 
sumption of the receipt of a letter by the addressee arises, 
so as to constitute a sufficient notice under this section 
the evidence must affirmatively show that the letter was 
written, properly addressed and stamped, and mailed. Row- 
land v. State, 34 Ga. App. 689, 690, 131 S. E- 96. 

§ 5852. (§ 5263.) Failure to attend. 

Forcing Attendance and Punishment of Witnesses. — 

Where a witness has been subpoenaed to attend the su- 
perior court and fails to obey the precept, the court may, 
under this section, proceed by attachment to compel the at- 
tendance of such witness, and also to punish him by a fine 
not exceeding three hundred dollars. But in such a case 
section 4849, par. 5 does not apply. Pullen v. Cleckler, 162 
Ga. Ill, 132 S. E- 761. See' annotations to section 4849, par. 5. 



ARTICLE 2 
Of the Competency of Witnesses 
§ 5856. (§ 5267.) Court decides competency. 

Child of Tender Years. — Where, under the proof a child 
of five years was not shown to possess sufficient intelligence 
to understand the nature of an oath, or the penalty for its 
violation, it was held that the court erred in permitting 
the witness to testify. Edwards v. State, 162 Ga. 204, 132 
S. E. 893. 

Applied in Goodson v. State, 162 Ga. 178, 132 S. E. 899. 

§ 5858. (§ 5269.) Who are competent to tes- 
tify. 

Witness Present in Transaction. — The fact that evidence 
oy a disinterested witness may have been adduced for the 
plaintiff, a personal representative, in support of a transac- 
tion between the deceased and defendant would not operate 
to alter the general rule. Shippey v. Carpenter, 36 Ga. 
App. 61, 135 S. E. 220. 

But the defendant may impeach the testimony of the 
plaintiff's witness by denying that such witness was 
present when the agreement between the decedent and 
himself was made. Shippey v. Carpenter, 36 Ga. App. 6±. 
135 S. E- 220. 

Grantor as Witness. — In an action of ejectment, the op- 
posite party to the deceased grantee of a deed is incompe- 
tent under this section to testify in her own behalf to con- 
versations and transactions with such deceased person 
affecting adversely the title conveyed by the deed. Sikes 
v. Sikes, 162 Ga. 302, 303, 133 S. E. 239. 

Party to Testamentary Contract. — Where a nephew and 
uncle contracted such that the property passing to the 
uncle's wife should become the nephew's upon her death, 
the nephew is not a competent witness as to the contract 
in an action of specific performance by the nephew against 
the wife to enforce the contract. Hardeman v. Ellis, 162 
Ga. 664, 667, 135 S. E- 195. 

Actions to Recover Purchase Price of Partnership. — On 
the trial of an action to recover from a partnership a sum 



r 122 j 



§ 5862 



INTERROGATORIES AND DISPOSITIONS 



§ 5910 



paid by the plaintiff on the purchase-price of the partner- 
ship business, the death of a member of the firm did not 
render inadmissible as evidence for the plaintiff a letter 
addressed to the firm by the plaintiff, in the lifetime of that 
member, stating that the latter told him that the firm would 
return the money. Saunders v. Hudson, 34 Ga. App. 7St, 
131 S. E. 115. 

Testimony of Interpleader Competent When Representa- 
tive Does Not Object. — On the trial of an action instituted 
by an administrator praying for direction by the court in 
the distribution of the estate of his decedent, testimony 
by one of the interpleading claimants, tending to show an 
executed contract in parol under which she was entitled to 
the estate, was not subject to exclusion on the objection 
of the other interpleaders (the administrator not objecting) 
upon the ground that the witness was incompetent to give 
such testimony, because it was as to transactions or com- 
munications with the decedent whose administrator was a 
party. The administrator was not seeking a recovery, and 
was not interested in the result save as a stakeholder or a 
third party entitled to maintain a petition for interpleadei . 
Cooper v. Reeves, 161 Ga. 232, 131 S. E. 63. 

Witness Testifying against Interests. — Where the wit- 
ness is not a party to the suit, and is not testifying in his 
own interest, but is testifying against his interest, he 
does not fall within the inhibition of this paragraph of this 
section. Chance v. Chance, 163 Ga. 267, 135 S. E. 923. 

Alleged Agent of Defendant, Witness against Adminis- 
trator. — That a husband was present and looking after thi 
transaction when his wife executed a deed of conveyance 
did not raise the implication, as matter of law, that he was 
her agent, and did not disqualify him as a witness on the 
trial of a suit defended by her, in which the administrators 
of the deceased grantee in the deed were plaintiffs; it not 
otherwise appearing that he was her agent, or that he 
looked after the transaction on her behalf, or that he had a 
legal or pecuniary interest in the result of the suit. Sikes 
v. Sikes, 162 Ga. 302, 133 S. E. 239. 

Applied as to transactions, in Campbell v. Sims, 161 Ga. 
517, 520, 131 S. E- 483; as to transferee, in Campbell v. 
Sims, 161 Ga. 517, 520, 131 S. E- 483. 

§ 5862. (§ 5273.) Idiots, etc. 

Evidence Admitted Erroneously. — When an examination by 
the court shows that the child has no such knowledge it 
is error to permit the child to testify over proper objection. 
Horton v. State. 35 Ga. App. 493, 133 S. E. 647. 



ARTICLE 3 
Of the Examination of Witnesses 
§ 5869. (§ 5280.) Separate examination. 

Liberal Construction. — In administering the rule of this 
section, the judge is invested with a broad discretion which 
is to be liberally construed, and the exercise of this dis- 
cretion will not be controlled or overruled except in case of 
an abuse of discretion. Under the circumstances disclosed 
by the record in this case we can not hold that the trial 
judge abused his discretion, and that the exclusion of the 
witness in the circumstances stated would require the grant 
of a new trial. Groover v. Simmons, 161 Ga. 93, 129 S. E- 
778. 

§ 5874. (§ 5285.) Opinions of witness. 

Opinion — Facts upon Which Conclusion Based. — On the 

trial of an issue as to general mental incapacity to make a 
will, a subscribing witness to the paper propounded as a 
will may give in evidence his opinion as to whether the 
testator at the time of executing the paper appeared "to 
have sense enough to know who his children were," with 
or without stating any other facts on which his opinion was 
based. Dyar v. Dyar, 161 Ga. 615, 131 S. E. 535. 

The opinion of a witness may be given in evidence as to 
the insolvency of a party, provided it is accompanied by 
the facts upon which the opinion is founded. Bennett v. 
American Bank, etc., Co., 162 Ga. 718, 729, 134 S. E. 781. 

The court properly rejected the testimony of an affiant, 
that as the result of years of study, observation, and ex- 
perience, he was firmly convinced that the Masonic Order 
in America is purely an altruistic, charitable institution, 
and that the practice of charity is the real excuse for 
its existence. The question was not one of opinion; and 
if it had been, such testimony was a mere opinion and con- 
clusions oi the witness, who was not shown to be an ex- 
pert, without the facts upon which such opinion and conclu- 
sion was based. Atlanta Masonic Temple Co. v. Atlanta. 
162 Ga. 244, 133 S. E. 864. 



Same — Specific Instances of Question of Opinion. — The 

question as to whether the car furnished could and did af- 
ford proper refrigeration between the points of shipment, 
when re-iced at regularly established icing stations, was 
held one of opinion. Central, etc., R. Co. v. Evans, 35 Ga. 
App. 438, 143 S. E. 122. 

Cited in Humphreys v. State, 35 Ga. App. 386, 133 S. E- 
518. 

§ 5875. (§ 5286.) Market value, how proved. 

The jury are not bound by the opinion of experts as to 

value. Black v. Automatic Sprinkler Co., 35 Ga. App. 8. 
131 S. E- 543. » 

Specific Applications. — Testimony as to the value of serv- 
ices rendered is in the nature of opinion evidence. Western, 
etc., Railroad v. Townsend, 36 Ga. App. 70, 72, 135 S. E. 439. 

Applied in Blaylock v. Walker County Bank, 36 Ga. App. 
377. 136 S. E. 924. 



ARTICLE 4 
Impeachment of Witnesses 
§ 5879. (§ 5290.) Impeaching own witness. 

Examination of Opposite Party. — An opposite party may- 
be cross-examined without entitling counsel for any oppo- 
site party or parties, as a matter of absolute right, to cross- 
examine the witness. Scarborough v. Walton, 36 Ga. Ap^. 
428, 136 S. E. 830. 

§ 5881. (§ 5292.) By contradictory statements. 

Sufficiency of Previous Statement. — A previous statement 
made by a witness, to be impeaching, must refer to matters 
relevant to his testimony and to the case, and must con- 
tradict some matter testified to by • him. Otherwise, the 
attempt to impeach will be unsuccessful. Tanner v. State, 
163 Ga. 121, 129, 135 S. E- 917. 

§ 5883. (§ 5294.) Credibility of witnesses. 

Applied in United States Fidelity Co. v. Hall, 34 Ga. App. 
307, 129 S. E. 305. 

§ 5884. (§ 5295.) What credit to impeached 
witness. 

Section Analyzed with Respect to Contradictions. — The 

phrase "successfully contradicted" applies where a witness 
has not been really impeached, but only where there has 
been an effort to impeach. In the next sentence of the sec- 
tion there is a provision applicable to a witness who has 
been really impeached, or "successfully" impeached. It will 
be observed that the language employed in this last referred 
sentence fits exactly the definition of perjury. The con- 
clusion, therefore, is that when one has been guilty of per- 
jury, he should not be believed, unless corroborated. The 
last sentence applies where the circumstances do not prove 
the witness guilty of perjury. Reed v. State, 163 Ga. 206, 
218, 135 S. E. 748. 

Same— Use of "Successfully Impeached."— The expression 
"successfully impeached" is inappropriate because it is con- 
fusing to use it in place of the words "successfully contra- 
dicted," as used in this section. Reed v. State, 163 Ga. 206, 
218. 135 S. E. 748. 



CHAPTER 6 
Of Interrogatories and Depositions 



ARTICLE l 
Commissions, How Issued and Returned 
§ 5886. (§ 5297.) Who may be examined on 
interrogatories. 

See annotations to § 5910. 



ARTICLE 5 
Evidence before Court Commissioner 
§ 5910. (§ 5315.) Depositions taken without 
order or commission. 

Effect of Refusal to Testify. — A» party to a pending action 
who is a competent and compellable witness served with 
proper notice for the taking of his depositions, but refuses 
to answer proper questions upon the sole ground that he 
does not come within any of the classes specified in section 



[ 123 ] 



§ 5926 



MOTION IN ARREST OF JUDGMENT 



§ 5968(4) 



5886, is guilty of contempt. Stephens v. Liquid Carbonic 
Co., 36 Ga. App. 363, 136 S. E. 808. 



SEVENTH TITLE 
The Verdict and Judgment 



CHAPTER l 
Verdict and Judgment 



ARTICLE 1 
Of the Verdict and Its Reception 
§ 5926. (§ 5331.) Direct verdict, when. 

Testing Propriety of Directing Verdict. — Where, under all 
the circumstances, only one conclusion is reasonably possible, 
the question ceases to be issuable as one of fact and be- 
comes a question of law. Southern Pacific Co. v. DiCristina, 
36 Ga. App. 433, 439, 137 S. E. 79. 

Converse of Section. — Where there is conflicting evidence 
as to material issues, it is error for the court to direct a 
verdict. Bailey v. First Nat. Bank, 34 Ga. App. 454, 129 S. 
E- 920. 

Refusal to Direct Always Proper. — Roberts v. Groover, 
161 Ga. 414, 131 S. E. 158. 

In proceedings to probate a will, upon a caveat for mental 
incapacity, where the evidence did not support such in- 
capacity, directing verdict for the propounder was held not 
erroneous. Mason v. Taylor, 162 Ga. 149, 152, 132 S. E- 89^. 

Applied in Taylor v. Mentone Hotel & Co., 163 Ga. 3J7. 
361, 136 S. E- 137. 

§ 5927. (§ 5332.) Construction of verdicts. 

Amount Where Verdict for Defendant. — A verdict in a 
trover suit, which reads, "We, the jury, find the property 
in dispute in favor of the defendant," will, at the instance 
of the defenaant, be construed as a verdict finding for the 
defendant for the value of the property in the amount 
established by the plaintiff's affidavit for bail, which is 
corroborated by the plaintiff's own personal testimony upon 
the trial. This is true although the defendant may not, 
prior to the rendition of the verdict, have elected to take a 
verdict for the value of the property. Pound v. Baldwin, 34 
Ga. App. 810, 131 S. E. 291. 

A verdict is certain which can be made certain by what 
itself contains or by the record. Smith v. Cooper, 161 Ga. 
594, 595, 131 S. E. 478. 

Verdict are to be construed in the light of the pleadings 
and the evidence, and all that is essential to a valid verdict 
is substantial certainty to a common and reasonable intent. 
It appearing from the pleadings and evidence in the record 
in this case that the validity of two deeds was involved, 
both relating to a single transaction, the court did not err 
in construing the finding of the jury finding "the deed' 
invalid as a reference to both deeds involved in the common 
issue. Short v. Cofer, 161 Ga. 587, 131 S. E. 362. 

§ 5930. (§ 5335.) Plaintiff may choose verdict. 

Section Construed with Section 4494. — The plaintiff does 
not have the option given to him under this section, "if the 
defendant at the first term will tender the property to the 
plaintiff, together with reasonable hire for the same since 
the conversion, disclaiming all claim of title." In such a 
case the plaintiff is limited to a recovery of the property 
under the tender; and is chargeable with the cost, unless 
it be shown that a previous demand for the property had 
been made and refused. Downs Motor Co. v. Colbert, 34 Ga. 
App. 542, 130 S. E. 592. 

Effect of Election upon Issue. — The sole issue in the trial 
of an action of trover is that of title to the property m dis- 
pute; and the fact that the plaintiff may elect to take a 
money verdict under this section in lieu of the specific per- 
sonalty claimed can in no event alter that issue. Citizens 
Bank v. Mullis, 161 Ga. 371, 131 S. E. 44. 

§ 5933. (§ 5338.) Juries may sustain verdict. 

Applied in Anderson v. Howard, 34 Ga. App. 292, 297 
S. E- 567. 



12* 



ARTICLE 5 
How Attacked, and Herein of Motion in Arrest 
of Judgment 
§ 5960. (§ 5365.) Amendable defects, no 
ground to arrest. 

Applied to a distress warrant containing amendable defects. 



Johnson v. Lock, 36 Ga. App. 620, 621, 137 S. E. 911. 

Cited or applied in Hudson v. Cohen. 34 Ga. App. 119, 12b 
S. E. 205. 

Applied in Henderson v. EUarbee, 35 Ga. App. 5, 6, 131 S. 
E. 524. 

§ 5961. (§ 5366.) Judgments obtained by per- 
jury will be set aside. 

Subsequent Statement of Witness as to Falsity of Evi- 
dence. — The fact that a witness for the state in a criminal 
case, though he be the only witness for the prosecution, has 
made declarations, since the trial, that this testimony g.ven 
upon the trial was false, is not cause for a new trial. Mor- 
row v. State, 36 Ga. App. 217, 136 S. E. 92. 

§ 5964. (§ 5369.) Judgments, when void. 

Setting Aside by Justice. — A justice of the peace has no- 
authority to set aside a judgment rendered by him; the 
subsequent entering of a second judgment purporting to set 
aside the first mentioned judgment, was itself void and 
should be treated as a nullity under this section. Edwards 
v. Edwards, 163 Ga. 825, 137 S. E- 244. 

Orders. — Where the judge's order shows on its face a 
cotal lack of jurisdiction, the judgment is wholly void, anu 
may, under this section, be attacked collaterally. Rogers v. 
Toccoa Power Co.,' 161 Ga. 524, 528, 131 S. E. 517. 

§ 5965. (§ 5370.) Equity may set aside judg- 
ment. 

Applied in Ehrlick v. Bell, 163 Ga. 547, 136 S. E. 423. 

§ 5968(1). Jurisdiction to set aside judgment 
on secured debt. — When a judgment shall be ren- 
dered upon any obligation secured by a deed to 
secure debt, a bond for title to realty, or a bill of 
sale to personality, given under section 3306 of 
the Civil Code, the court which rendered such 
judgment, or the judge thereof in vacation, shall 
have jurisdiction, power, and authority to vacate 
and set aside said judgment at any time before 
the sale of the property described in the deed, 
bond for title, or bill of sale is made, upon mo- 
tion of the attorney of the plaintiff and defendant 
in fi. fa., and the pa}^ment of the costs. Acts 
1927, p. 221. 

§ 5968(2). Cancellation of fi. fa. — Whenever a 
judgment shall be so vacated and set aside, the 
clerk of the court in which it was rendered shall 
mark the fi. fa. issued thereon cancelled and the 
clerk of the Superior Court shall enter the same 
upon the general execution docket, and make 
thereon an appropriate reference to the order va- 
cating the judgment. Whenever a judgment 
shall as herein provided be vacated and set aside, 
any deed reconveying the property to the defend- 
ant in fi. fa. for the purpose of levy and sale shall 
be, by virtue of the provisions hereof, automati- 
cally cancelled and rendered null and void, and 
the clerk of the Superior Court shall enter on the 
record of such deed or reconveyance, when re- 
corded, the word "cancelled," and make appro- 
priate reference to the order vacating the judg- 
ment. 

§ 5968(3). Original status restored. — When a 
judgment shall be vacated and set aside as here- 
in provided, the obligation upon which the same 
was rendered, as well as the deed, bond for title, 
or bill of sale securing the same, shall be fully 
restored in all respects to the original status of 
the same which existed prior to the commence- 
ment of the suit in which such iudgment was ren- 
dered, and thereafter the same shall be for all 
purposes whatsoever legally of force and effect as 
if suit had not been instituted and judgment ob- 
tained on the said obligation. 

§ 5968(4). Applicable to mortgage foreclosure. 



[124] 



§ 5989(3) 



ABOLITION OF FEE SYSTEM IN CITIES AND TOWNS § 6017(11) 



— The jurisdiction, power, and authority to va- 
cate and set aside a judgment, as hereinbefore 
provided, shall extend to a judgment on pur- 
chase-money note, conditional sale contract 
where title is reserved as security, or bond for 
title is given, and all other cases where it is nec- 
essary under section 6037 of the Civil Code to re- 
convey property to the defendant in fi. fa. for the 
purpose of levy and sale. The provisions of this 
Act shall also extend and be applicable in all re- 
spects to a judgment and decree foreclosing a 
mortgage. 



EIGHTH TITLE 
Costs in Civil Cases 



CHAPTER l 

Of Costs in Civil Cases 

§ 5989(3). In counties containing cities of 
more than 175,000 population. — One official court 
reporter for each of the several divisions of the 
superior and city courts in counties of this State 
containing a city of more than 175,000 popula- 
tion, according to the Federal census of 1920, 
shall be paid out of the treasury of such county a 
salary to be fixed by the commissioners of roads 
and revenues of such county, not to exceed forty- 
two hundred dollars per annum, payable monthly, 
which salary shall be compensation in full for at- 
tendance upon, and taking stenographic notes in, 
any court or division thereof covered by this Act. 
Acts 1923, p. 104; 1925, p. 164; 1927, p. 216. 

Editor's Note. — The maximum salary to be paid to a court 
reporter under this section was raised from three thousand 
dollars to forty-two hundred dollars, by the amendment of 
1927. 



CHAPTER 3 
Abolition of Fee System in Certain Counties 



ARTICLE 1 

Counties of 200,000 or More Population 

§ 6017(1). County officers to receive salaries 
instead of fees. 

Cited in Georgia-Carolina L,umber Co. v. Wright, 161 Ga. 
281, 285, 131 S. E. 173. 

§ 6017(6). Commissions for collection of cor- 
poration, occupation and other special taxes re- 
turnable to state. — ■ Provided however, commis- 
sions now or hereafter allowed by law for the col- 
lection of corporation, occupation and other special 
taxes shall be collected by the officers aforesaid 
for the use of the State and held as public moneys 
belonging to the state and shall be remitted by 
the officer collecting the same to the State in the 
same manner and at the same time the taxes are 
remitted, and none of said commissions shall be 
turned into the county treasury. The provisions 
of this section shall not apply to counties having 
a population of not less than ninety thousand 
(90,000) nor more than one hundred and fifty 
thousand (150,000) inhabitants. Acts 1925, pp. 
159, 160; 1927, p. 208. 

Ed'tor's Note. — The last sentence of the section was added 
by the amendment of 1927. 

§ 6017(7). County officers to receive salaries 



instead of fees; exception. — This Act shall apply 
to all counties in the State of Georgia having by 
the United States census of 1920 a population of 
forty-four thousand to sixty thousand inhabitants 
and to all counties in the State of Georgia having 
by the United States census of 1920 a population 
of seventy thousand to one hundred and fifty 
thousand inhabitants and to all counties in the 
State which may by any future census of the 
United States have a population of seventy thou- 
sand to one hundred and fifty thousand inhabi- 
tants except as hereinafter provided. In all such 
counties the fee system for compensating the offi- 
cers herein named shall be abolished except those 
fees that are paid by the State to the Tax Collec- 
tor and Tax Receiver and the officers herein 
named shall thereafter be paid salaries as herein 
provided instead of fees as under the present 
system except for the fees to be paid by the State 
as will be hereinafter provided. Acts 1924, p. 90; 
1925, p. 161; 1927, p. 207. 

Editor's Note. — The phrase "except as hereinafter pro- 
vided" at the end of the first sentence, was inserted by the 
amendment of 1927. 

§ 6017(8). Salaries to be fixed annually 90 
days before January 1. — The salaries, in all such 
counties as are described in Section 6017(7), of 
the Clerk of the Superior Court, (whether he be 
ex officio clerk of other courts or not) the Sher- 
iff, the Ordinary, the Tax Collector, and the Tax 
Receiver, shall be fixed for the terms of such offi- 
cers, at least ninety days before the first of Jan- 
uary, (beginning with January, 1926), by the 
Commissioners of Roads and Revenues, if there 
be such, (whether the bodv shall consist of one 
or several commissioners) or, in event that there 
are no such Commissioners, the Ordinary or 
other County authorities having charge of the 
Roads and Revenues of such counties and such 
salaries shall be fixed for each term, at the time 
aforesaid, and shall not be changed during said 
terms. Provided that in counties having a popu- 
lation of not less than ninety thousand (90,000) 
nor more than one hundred and fifty thousand 
(150,000) by the census of the United States, 
the clerk of the Superior Court shall be paid a 
salary of nine thousand ($9,000.00) dollars per 
annum; the sheriff a salary of seven thousand 
($7,000.00) dollars per annum; the ordinary a sal- 
ary of six thousand, five hundred ($6,500.00) dol- 
lars per annum; the tax-collector a salary of one 
thousand ($1,000.00) dollars per annum for serv- 
ices collecting the county taxes; the tax-receiver 
a salary of three thousand, five hundred ($3,500.00.) 
dollars per annum for receiving the returns 
for county taxes; each of said salaries to be paid 
in equal monthly installments. Provided that 
nothing herein shall affect any fees or compensa- 
tion that are now allowed b}' law to the said tax- 
collector by the State of Georgia or that may be 
fixed or allowed hereafter by law, it being the in- 
tent of this proviso that the fees and compensa- 
tion which said tax-collector receives from the 
State shall not be abrogated and shall not be con- 
sidered as any part of the salary he receives from 
the County of Chatham. Acts 1924, p. 90; 1927, 
p. 208. 

Editor's Note. — Both of the provisos to this section were 
added by the amendment of 1927. 

§ 6017(11). Payment of salaries, how made. 
— After said salaries and expenses are so fixed 



[125] 



§ 6026 



SALES UNDER EXECUTION 



§ 6060 



and determined, as provided in §§ 6017(8), 6017(9) 
and 6017(10), it shall be proper and lawful for the 
treasurer of the county, or other custodian or de- 
pository of county funds, out of the county funds 
which may be paid into the county treasury of 
such county and derived under the provisions of 
§ 6017(13) on or before the fifteenth day of each 
month, to pay out the monthly portion of such 
salaries and expenses to each officer herein named, 
who shall retain his own salary, and disburse the 
salaries of assistants and deputies and expenses 
of the office. Provided, however, that it may be 
lawful for the Treasurer of the County, or other 
custodian or depository of County funds, to an- 
ticipate the payment into the County Treasury 
of funds derived under the provisions of § 6017(13) 
and to pay out of County funds the monthly por- 
tion of such salaries and expenses to each officer 
herein named, as herein above provided. Such 
disbursement shall be made in accordance with the 
provisions of any local or special Act of any county 
affected by the provision of this Act, regulating the 
methods of disbursements of other county funds. 
Provided, that as relates to counties having a pop- 
ulation of not less than ninety thousand (90,000) 
nor more than one hundred and fifty thousand 
(150,000) inhabitants, the words and figures, "as 
provided in §§ 6017(8), 6017(9) and 6017(10)" as 
used in this section shall not apply. Acts 1924, pp. 
90, 92; 1925, p. 162; 1927, p. 209. 

Editor's Note, — The last proviso was added by the amend- 
ment of 1927. 



ARTICLE 2 

Of Fi. Fas., How Levied, and Proceedings 
Thereon 

§ 6026. (§ 5421.) Form of levy. 

Cited in Wiley v. Martin, 163 Ga. 381, 136 S. E- 151. 

§ 6028. (§ 5423.) On what property first 
levied, right of. 

Section Not Applicable to Tax Execution. — This section 
does not apply to tax sales. McDaniel v. Thomas, 162 Ga. 
592, 133 S. E. 624. 

Effect Where Defendant Not Allowed to Point out Prop- 
erty — Notice to Surety. — It is not a ground of illegality that 
the defendant surety was not notified of the impending levy 
and was given no opportunity to point out property either 
in his possession or in the possession of one of the principals 
in the judgment. Mulling v. Bank, 36 Ga. App. 55, 135 S. E- 
222. 

§ 6029. (§ 5424.) Sale of separate parcels 
subject to lien. 

To What Liens Applicable. — Applied to the enforcement 
of a tax lien. Columbia Trust, etc., Co. v. Alston, 163 Ga. 
83, 135 S. E. 431. 

§ 6030. (§ 5425.) Growing crop to be sold, 
how. 

Stage of Maturity When Subject to Levy. — As to crops, 
such as cotton, which do not mature on the stalk at one time, 
but whose maturity is extended throughout the latter portion 
of the growing season, the rational construction of this sec- 
tion would be, that 'the crop is subject to levy, whenever it 
has reached that stage of maturity when it is ready fo 
harvesting to commence. Barnesville Bank v. Ingram, 34 
Ga. App. 369, 129 S. E. 112. 

§ 6031. (§ 5426.) Notice of levy on land. 

Cited in Wiley v. Martin, 163 Ga. 381, 384, 136 S. E. 151. 

§ 6032. (§ 5427.) Setting aside execution 
sale. 

Applied in Davis v. Elliott, 163 Ga. 169, 175, 135 S. E- 731. 
Cited in Wiley v. Martin, 163 Ga. 381, 136 S. E. 151. 



ARTICLE 3 

Levy and Sale Where Defendant Has not Legal 

Title 

§ 6037. (§ 5432.) Levy, when contract of 
purchase or bond for title made. 

I. EDITOR'S NOTE AND GENERAL CONSIDERATIONS. 

Applied in Corley v. Jarrell, 36 Ga. App. 225, 136 S. E. 17/. 
VI. FILING AND RECORDING. 

Necessity for Filing and Recording Deed' — Proper Person 
to Execute Deed. — Under this section, the "holder of the 
legal title," and not the original vendor, is the proper per- 
son to execute the quitclaim deed under the fi. fa. If a note 
only is transferred and no deed is made conveying the legal 
title to the land as security, then it is necessary, after the 
transferee has obtained judgment, that the vendor execute a 
quitclaim deed to the purchaser before the fi. fa. could have 
been levied, because in that event the vendor would have 
continued to be the holder of the legal title. Swinson v. 
Shurling, 162 Ga. 604, 134 S. E. 613. 

VII. LEVY AND SALE. 

General Considerations. — Under this section, the holder 
of a debt and of the legal title of land conveyed to him as 
security by the debtor, may, upon default in payment, re- 
duce the debt to judgment, place of record a quitclaim re- 
investing the debtor with the legal title to the land, and 
thereupon have the land levied on and sold in satisfaction 
of the judgment, free from the claims of persons who pur- 
chased the land from the debtor subject to the security 
deed. Scott v. Paisley, 271 U. S. 632, 46 S. Ct. 591 affirming 
S. C. 158 Ga. 876, 124 S. E. 726. 

Notice. — There is no principle entitling such purchasers 
to notice of the exercise of this statutory power by the 
creditor, and that in failing to provide such notice the 
statute does not deprive them of property without due proc- 
ess of law or deny them the equal protection of the laws. 
Scott v. Paisley, supra. 

§ 6038. (§ 5433.) Where another than vendor, 
etc., has judgment. 

In General — Scope — Applies to Stranger to Security Deed. — 

Where it appears that a conveyance of title to the property 
levied on, made by the defendant in execution to a stranger 
prior to the levy, would, if valid, operate, under the section 
to deprive the defendant in execution of any leviable interest 
in the property, the plaintiff in execution may, in the same 
action, for the purpose of subjecting the property to the 
execution, attack the conveyance upon the ground of fraud. 
This case is distinguishable from Sloan v. Ldit'is, 157 Ga. 
93, 120 S. E- 781, in which it appears conclusively, as a 
matter of law, that the legal title was in the claimant, and 
that the only interest the defendant in execution had ever 
had in the property levied upon was as a purchaser holding 
under a bond for title. Remington v. Garrett, 34 Ga. App. 715,. 
130 S. E. 831. 

No Levy Until Note Paid.— See Miller v. First Nat. Bank, 
35 Ga. App. 334, 132 S. E- 783, holding the same as the 
paragraph under this catchline in the Georgia Code of 1926. 

Cited in Duke v. Ayers, 163 Ga. 444, 454, 136 S. E. 410. 



CHAPTER 2 

Of Forthcoming Bonds 

§ 6042. (§ 5437.) Rights of plaintiffs not af- 
fected. 

Section quoted in Garmany v. Loach, 34 Ga. App. 722, 131 
S. E. 108. 



CHAPTER 6 
Of Sales under Execution 



ARTICLE 1 
When and Where Made 

§ 6060. (§ 5455.) Place, time, and manner of 
sales. 

Not Applicable to Parties under Contract to Deliver. — 



[126] 



§ 6068 



WHAT CAUSES MAY BE TAKEN TO SUPREME COURT 



§ 6138 



The provisions of the section, relieving levying officers in 
certain instances from removing heavy property to the 
court-house door, were made for the benefit of the officers 
and the parties to processes levied by them, and not for the 
benefit of other persons who may voluntarily contract in 
writing by a statutory bond to deliver such property at the 
court-house door. See Scruggs v. Bennett, 34 Ga. App. 131, 
132, 128 S. 32. 703, and cases there cited. 



ARTICLE 3 
Sale of Perishable Property 
§ 6068. (§ 5463.) Sale of perishable property. 

As to amount of recovery, see note under section 5153. 

Liens. — For a case holding substantially with the case 
under this catchline in the Georgia Code of 1926, see Cham- 
bers v. Planters Bank, 161 Ga. 535, 131 S. E. 280. 

One Filing Intervention Charged with Notice of Applica- 
tion for Short-Order Sale. — One who files an intervention 
claiming title to a vehicle against which condemnation pro- 
ceedings have been instituted for transporting prohibited 
liquors along the public highways is chargeable with notice 
of an application, already of file in the same court, for a 
"short-order" sale of the property under the section. Parker 
v. State, 36 Ga. App. 370, 136 S. E. 800. 

§ 6069. (§ 5464.) How sold. 

See note to preceding section under catchline "Liens." 
Fd. Note. 



TENTH TITLE 
New Trials 



CHAPTER l 

By Whom and for What Causes Allowed 

§ 6084. (§ 5479.) For erroneous charge to jury, 
etc. 

Section cited in May v. Yearty, 34 Ga. App. 29, 128 S. F. 
67; Carr v. Hendrix, 34 Ga. App. 446, 129 S. F. 876. 

§ 6085. (§ 5480.) On account of new evidence. 

Facts Known by Summoned Witnesses Who Did Not 
Testify. — Where witnesses summoned by the defendant are 
present at me trial but are not examined, a new trial will 
not be granted on the ground that since the verdict the de- 
fendant has for the first time learned that they could have 
testified to facts material to his defense. Rounsaville v. 
State, 163 Ga. 391, 397, 136 S. F. 276; Hall v. State, 117 Ga. 
263, 43 S. F. 718. 

§ 6086. (§ 5481.) Rule in such cases. 

Discretion of Trial Judge. — That it is no abuse of discre- 
tion to refuse a new trial when the proper affidavits sup- 
porting witnesses are absent is reaffirmed in Carpenter v. 
State, 35 Ga. Aop. 349, 133 S. F- 350, and in Nelson v. 
State, 35 Ga. App. 364, 133 S. F. 351. 

Affidavits — In Support of Witnesses. — An affidavit in sup- 
port of the witness upon whose newly discovered evidence 
a new trial is sought must give the names of his associates, 
a statement that he keeps good company not being suffi- 
cient to meet this requirement, which is necessary to en- 
able the prosecution to make a counter-showing; and 
where such affidavit does not comply with this requirement, 
the trial iudge does not abuse his discretion by refusing to 
grant a new trial on this ground. Brice v. State, 34 Ga. 
App. 240, 129 S. F- 665, citing Ivey v. State, 154 Ga. 63, 113 
S. F. 175. See also, Carpenter v. State, 35 Ga. App. 34J, 
133 S. F. 350; Wright v. State, 34 Ga. App. 505, 130 S. E. 
216. 

Rule of Industrial Commission. — Rule 26 of the industrial 
commission follows this section, relating to newly discovered 
evidence as a ground for a new trial. American Mutual 
Liability Ins. Co. v. Hardy, 36 Ga. App. 487, 491, 137 S. F. 
113. 

Quoted in part in Hewett v. State, 36 Ga. App. 664, 137 
S'. E. 853. 

Applied in Shahan v. State, 36 Ga, App. 315, 136 S. F. 798. 

§ 6092(1). Effect of failure to raise objections 
before trial judge. 

App'ied in City Nat. Bank v. Bridges, 34 Ga. App. 178, 
128 S. E. 694. 



§ 6093. (§ 5488.) Brief of evidence. 

General Considerations. — The brief of evidence required 
is a condensed and succinct brief of material portions of 
oral testimony; the briefer the brief the better, provided 
it includes the substance of all the material portions of the 
evidence, oral and documentary. It is not dependent ex- 
clusively upon the stenographic report. The use of tiit- 
question and answer form in the brief, except in unusual 
instances, is not permissible. Brown v. State, 163 Ga. 681, 
137 S. E. 31. 

What Constitutes Non-Compliance. — Where the document 
purporting to be a brief of the evidence is made up ot 
portions of the pleadings together with the captions of the 
same and other documentary evidence copied without brief- 
ing, and where many pages of the oral evidence are not 
briefed but are set out as questions and answers, such a 
paper will be held to constitute no compliance with the law. 
Davis v Gray, 163 Ga. 271, 136 S. E. 81. 

Same — Absence of Bona Fide Effort to County. — Wh re 
chere had been no bona fide effort to comply with the re- 
ouirement of this section, the court will not undertake to 
determine any question the decision of which is dependent 
upon a consideration of the so-called brief of evidence an- 
nexed to the bill of exceptions. Clay v. Austell School Dist., 
36 Ga. App. 354, 136 S. E. 540. 



ELEVENTH TITLE 
Supreme Court 



CHAPTER 1 
The Supreme Court and Its Powers 
§ 6103. (§ 5498.) Powers enumerated. 

Cited in Gore v. Humphries, 163 Ga. 106, 115, 135 S. E- 
481. 



CHAPTER 2 

Its Judges 

§ 6116. Reversal and affirmance; number of 
judges. 

Applied as to affirmance by operation of law when the 
justices are equally divided. Irby v. Allen & Co., 161 Ga. 
858, 131 S. E. 910. 



CHAPTER 4 

What Causes May Be Taken to the Supreme 

Court 

§ 6138. (§ 5526.) Writ of error. 

I. EDITOR'S NOTE. 

For cases holding: substantially with the rule of the first 
paragraph under this analysis line in the Georgia Code ot 
1926, see American Agri. Chemical Co. v. Bank, 34 Ga. 
App. 62, 128 S. E. 208; Brown v. Marbut- Williams Lumber 
Co., 34 Ga. App. 348, 129 S. E. 575. 

II. WHEN WRIT OF ERROR OR BILL OF EXCEP- 
TIONS LIE. 
A. Premature Jurisdiction Generally. 

When Premature. — The direction of a verdict finding 
against a plea of res adjudicata is not such a final judgment 
as is subject to review by direct bill of exceptions. The 
ruling may be excepted to by exceptions pendente lite, upon 
which error may be assigned in a bill of exceptions contain- 
ing an exception to a final judgment; but the error alleged 
to have been committed can not be reviewed in the Supreme 
Court until there has been a final judgment in the lower 
court. Douglas v. Hardin, 163 Ga. 643, 136 S. E- 793. 

C. Other Instances of Final Disposition. 

Judgment on General Demurrer. — A judgment overruling 
the general demurrer to a petition, is a final determinaticr. 
of the case and would authorize the defendant to assign 
error thereon in a direct bill of exceptions. Newton v. Rob- 
erts, 163 Ga. 135, 135 S. E. 505. 

Order for Making New Party. — An order for making a 
new party is a final disposition of the cause as to such new 
Darty if the trial court refuses to make him a party, and 
consequently a writ of error sued out by him cannot oe 



[127] 



§ 6139 



DUTY OF CLERKS OH SUPERIOR AND CITY COURTS 



§ 6167 



(§ 5527.) Bills of exceptions; cross- 



said to have been prematurely obtained. McMillan v. 
Spencer, 162 Ga. 659, 134 S. E. 921. 

Applied in Seaboard Air Line R. Co. v. Sarman, 36 Ga. 
App. 448, 136 S. E- 920; Cooper v. Whitehead, 163 Ga. 662, 
136 S. E 911. 

§ 6139. 
bills. 

See annotation to section 6224. 

III. CROSS-BILLS. 
General Considerations. — Calhoun Oil, etc., Co. v. West- 
ern, etc., Railroad, 35 Ga. App. 436, 133 S. E. 348, affirms 
the holding of the second sentence under this catchline in 
the Georgia Code of 1926. 



CHAPTER 5 
Of Taking Cases to Supreme Court 



ARTICLE l 

Mode of Procedure 

§ 6144. When motion for new trial, etc., not 
necessary. 

Cited in Home Ins. Co. v. Swann, 34 Ga. App. 19, 128 S. 
E. 70. 

§ 6147. (§ 5534.) Judge to examine certificate. 

Section Will Not Prevent Dismissal of Improperly Certi- 
fied Certificate. — The judge's certificate to the bill of ex- 
ceptions must state that it is true; and for lack of such 
certification the bill of exceptions will be dismissed. This 
is not a mere "want of technical conformity to the statutes 
or rules regulating the practice in carrying cases to" tne 
Supreme Court; and this section will not prevent the dis- 
missal of the bill of exceptions for the lack of such certifi- 
cation. Cady v. Cady, 161 Ga. 556, 131 S. E. 282. 



ARTICLE 2 

Diminution of Record 

§ 6149. (§ 5536.) Additional record, how pro- 
cured. 

What May Be Brought up. — For a case holding with the 
principle set out under this catchline in the Georgia Code 
of 1926, see Free Gift Lodge v. Edwards, 161 Ga. 832. 132 S. 
E. 206. 

Applied in Lewis v. Moultrie Banking Co., 36 Ga. App. 
347, 351, 136 S. E. 554. 



ARTICLE 3 

Bills of Exceptions, When to Be Signed 

§ 6152. (§ 5539.) Bill of exceptions, when to 
be tendered. 

General Considerations — Failure to Certify for More 
than Thirty Days. — This section does not in any case au- 
thorize delay in tendering a bill of exceptions for more 
than thirty days after the final adjournment of the court 
for that term. Birmingham Finance Co. v. Chisholm, 162 
Ga. 501, 134 S. E- 301. 

Delay or Extension of Time. — Cohen v. Brown, 35 Ga. 
App. 508, 134 S. E. 119, affirms the holding given in the first 
paragraph under this catchline in the Georgia Code of 1926. 
Burnett v. McDaniel & Co., 35 Ga. App. 367, 133 S. E. 268, 
holds substantially the same as the second paragraph under 
this catchline in the Georgia Code of 1926. 

Same— Supersedeas Does Not Extend.— The fact that the 
order of the superior court to which exception is taken pro- 
vides that it shall operate as a supersedeas for twenty 
days relate* merely to the enforcement of the judgment 
Dending a valid writ of error, and did not have the effect of 
changing the date of the order excepted to, or of extending 
the time prescribed by law within which an appeal could e 
taken. Cohen v. Brown, 35 Ga. App. 508, 134 S. E. 119. 

Applied in Parrish v. Central, etc., R. Co., 36 Ga. App. 
133, 135 S. E. 762; Forrester v. Frizzell, 35 Ga. App. 562. 
134 S. E. 182; Hamilton v. Kinnebrew, 161 Ga. 495, 131 S. 
E. 470; McDonald v. Dabney, 161 Ga. 711, 132 S. E. 547. 

Cited in Miller & Co. v. Gibbs, 161 Ga. 698, 699, 132 S. E- 
626. 



§ 6153. (§ 5540.) Fast bills of exception. 

Cited in Miller & Co. v. Gibbs, 161 Ga. 698, 132 S. E. 626. 

§ 6154. (§ 5541.) Exceptions pendente lite. 

Applied to cross bill of exceptions to review interlocutory 
hearings to which no exception was filed within time pre- 
scribed. Miller & Co. v. Gibbs, 161 Ga. 698, 132 S. E- 626. 



ARTICLE 4 

Proceedings in Case of Death or Refusal to 
Sign 

§ 6155. (§ 5542.) When the judge is dead or 
absent. 

Failure to Tender to Judge. — The provisions of the section 
are not applicable where a so-called bill of exceptions wao 
not certified by the judge of the trial court, but was verified 
oy the oath of the attorney for the plaintiff in error, and 
where it appears that the bill of exceptions was never ten- 
dered to the presiding judge for certification although 
the judge lived for more than ninety days after the ad- 
journment of the term of the court during which the judg- 
ment complained of was rendered, and was capable of act- 
ing and could have certified the bill had it been presented 
to him in time. Einthicum v. Trust Co., 36 Ga. App. 423, 
136 S. E. 813. 

§ 6158. (§ 5545.) Judge refusing to certify. 

Applied in Nash v. Sheppard, 161 Ga. 192, 129 S. E. 639. 



ARTICLE 5 
Service of Bills of Exceptions 

§ 6160(1). Parties bound by service on coun- 
sel; waiver of defects. 

General Considerations — Absence of Service or Acknowledg- 
ment. — Where there is no service and no acknowledgment 
of service or waiver thereof, the bill of exceptions will be 
dismissed. Izlar v. Central, etc., R. Co., 162 Ga. 558, 134 S. 
E- 315. 

Parties Bound by Service upon Counsel — Non-residents o* 
County. — Where it is attempted to serve a bill of exceptions 
by leaving a copy thereof at the residence of the attorney 
of the defendant in error, it must affirmatively appear that 
the defendant in error is a non-resident of the county. 
Saunders v. Saunders, 163 Ga. 770, 137 S. E. 15. 

Sufficiency of Acknowledgment to Bind in Dual Capacity. 
- — Where an acknowledgment of service by "Atty. for X" 
has been procured, X is bound both personally and in his 
representative capacity, and the bill of exceptions can be 
amended in the Supreme Court by making any person a 
party defendant in error to the case who is bound by such 
service, although such person may not have been named 
in the bill of exceptions. Henderson v. Eott, 163 Ga. 326, 
328, 136 S. E. 403. 

Acknowledgment as Waiver — Service on Sunday. — The 
Court of Appeals will not dismiss the bill of exceptions 
merely because the service thereof appears to have been 
acknowledged on a date which the court judicially knows 
was Sunday, when counsel did not state in the entry of ac- 
knowledgment that it was not to be construed as a waive; 
of the defect. Bartow v. Smith, 35 Ga. App. 57, 132 S. E. 
103. 

Applied in Sanders v. Sanders, 163 Ga. 770, 137 S. E. 15. 

§ 6160(2). Bill of exceptions amended to make 
person a party defendant. 

Applied in Sanders v. Sanders, 163 Ga. 770, 137 S. E. 15; 
Henderson v. Eott, 163 Ga. 326, 328, 136 S. E. 403. See note 
under preceding section. 



ARTICLE 6 
Supersedeas 
§ 6165. (§ 5552.) Supersedeas, how obtained. 

Applied in Tift v. Atlantic Coast Eine R. Co., 161 Ga. 432, 
447, 131 S. E. 46. 



ARTICLE 7 
Duty of Clerks of Superior and City Courts 
§ 6167. (§ 5554.) Filing in clerk's office. 

Sufficient Filing. — For cases sustaining the principle stated 



[128] 



§ 6176 



COMMON-LAW RULES— ILLEGALITY 



§ 6288 



in the second sentence under this catchline in the Georgia 
Code of 1926, see Gibbs v. Hancock Mut. Life Ins. Co., 35 
Ga. App. 505, 133 S. E- 749; Norris v. Baker County, 135 Ga. 
229, 69 S. E. 106; Goodin v. Mills, 137 Ga. 282, 73 S. E. 399; 
Tatum v. Trappnell, 30 Ga. App. 104, 117 S. E- 251. 

Effect of Non-Compliance. — Where it appears from tne 
certificate of the clerk of the trial court that the section 
was not complied with, and that counsel for plaintiff in error 
was the cause of such failure, the writ of error must be dis- 
missed. Atlanta, etc., Nat. Bank v. Goodwin, 34 Ga. App. 
169, 128 S. E. 691. 

Cited in Alford v. Gibson, 161 Ga. 567, 131 S. E. 529. 



ARTICLE 3 
Making Parties, etc. 
§ 6176. (§ 5562.) Essential parties. 

Instances of Essential Parties — Use May Be Essential Party. 

— There may be cases in which the nominal plaintiff is so 
wholly without interest in the suit, or the results thereof, as 
to make the usee the proper person upon whom to perfect any 
service required to be made in behalf of the defendant. Shgh 
v. Smith, 36 Ga. App. 237, 239, 136 S. E. 175. 
Applied in Whitehurst v. Holly, 162 Ga. 323, 133 S. E. 861. 



ARTICLE 4 

No Dismissals in Supreme Court, When 

§ 6183. (§ 5569.) Unlawful to dismiss for tech- 
nical defect. 

Applied in Colquitt County v. Bahnsen, 162 Ga. 340, 34i, 
345, 133 S. E. 871; Stephens v. Liquid Carbonic Co., 36 Ga. 
App. 363, 367, 136 S. E. 808. 

Cited in Flood v. Empire Invest. Co., 35 Ga. App. 266, 133 
S. E- 60. 

§ 6184. (§ 5570.) Dismissal avoided by amend- 
ment. 

Amending to Conform to Judgment. — The plaintiff in error 
should be allowed to amend the bill of exceptions so as to 
make it conform with technical accuracy to the judgment. 
Flood v. Empire Invest. Co., 35 Ga. App. 266, 268, 133 S. E- 6U. 

§ 6186. (§ 5572.) Benefits lost by negligence. 

Applied in Barrett v. Union Banking Co., 163 Ga. 893, 137 
S. E. 14. 

§ 6187. No dismissal because not certified in 
time. 

Applied in Parrish v. Central, etc., R. Co., 36 Ga. App. 
133, 135 S. E. 762. 



ARTICLE 5 

Amendments 

§ 6190. (§ 5575.) Incomplete record, how cor- 
rected. 

Where a demurrer is not sent up as a part of record, the 
Supreme Court is empowered under this section to require 
it sent up. Bennett v. Benton, 162 Ga. 139, 140, 133 S. E- 
855. 



ARTICLE 7 

Decisions 

§ 6204. (§ 5585.) First grant of a new trial. 

Where First New Trial Error. — It is error even to grant 
a first new trial where the law and the evidence demands 
the 1 verdict as rendered, whether it was directed by the 
court or returned at the volition of a jury. Jones Motor Co. 
v. Finch Motor Co., 34 Ga. App. 399, 401, 129 S. E- 915. 

Applied in Riggins v. Scott, 35 Ga. App. 465, 133 S. E. 
647; Eouisville & N. R. Co. v. Barksdale, 34 Ga. App. 812, 
131 S. E- 298; Nabros v. Nabros, 161 Ga. 382, 131 S. E. 45. 
See Douglas v. Hardin, 161 Ga. 838, 131 S. E- 896. 

§ 6207. (§ 5588.) Decision of, how reversed. 

Applied in Hallman v. Atlanta Child's Home, 161 Ga. 247, 
254, 130 S. E- 814. 



ARTICLE 8 

Record and Costs 
§ 6210. (§ 5591.) Attorney liable for costs. 

Advance of Costs by Attorney Does Not Defeat Levy.— 

A levy under an execution for costs, issued in the name of 
the' plaintiff for the use of officers of court, is not subject 
to be arrested by affidavit of illegality on account of the 
fact that the attorney for the plaintiff had advanced the 
costs incurred in the appellate court. Harvey v. Long Cigar, 
etc., Co., 36 Ga. App. 45, 135 S. E- 222. 



ARTICLE 9 
Judgment and Remittitur 

§ 6213. (§ 5594.) Damages in cases of af- 
firmance. 

Court Not Convicted That Case for Delay. — See Guthrie 
v. Rowan, 34 Ga. App. 671, 131 S. E- 93, holding the same 
as the' paragraph under this catchline in the Georgia Code 
of 1926. 

Must Be Judgment for Sum Certain. — See Clark v. Union 
School District, 36 Ga. App. 80, 135 S. E. 318, holding sub- 
stantially the same as the first sentence under this catch- 
line in the Georgia Code of 1926. 

When Is Case Brought Up for Delay — Objection That Ver- 
dict Contrary to Law and Evidence. — Where the only 
ground of exception presented was that the' verdict is con- 
trary to law and without evidence to support it, and where 
it appears that under a proper application of the law the 
evidence supports the verdict this section will be applied. 
Yeomans v. Beasley, 36 Ga. App. 467, 137 S. E. 131. 

Applied in Felker v. Still, 35 Ga. App. 236, 133 S. E. 519. 



RULES OF THE SUPREME COURT OF 
THE STATE OF GEORGIA 



II. Bills of Exceptions and Records 
§ 6224. (§ 5605.) Rule 6. Bills of exceptions. 

Bill Held Sufficient. — See Colquitt County v. Bahnsen, 
162 Ga. 340, 345, 133 S. E- 871, where the bill of exceptions 
was held to specify plainly the decision of the court denying 
the plaintiff a mandamus absolute. 

IV. Costs 

§ 6232. (§ 5613.) Rule 14. Attorneys, etc., 
bound. 

Appointed Counsel Not Relieved of Payment. — Under this 
rule of court the counsel can not be relieved from the pay- 
ment of costs on the ground that he was appointed in the 
court below to represent the defendant, the latter being un- 
able to employ counsel, and being financially unable to re- 
spond to him for the costs incurred. James v. State, 162 Ga. 
42, 132 S. E. 417. 



RULES OF THE SUPERIOR COURTS 

Established by the Judges in Convention, at 
Atlanta, July 5, 1907 



COMMON-LAW RULES 

XII. Illegality 

§ 6288. (§ 5662.) Rule 29. No second affi- 
davit. 

General Considerations — When First Affidavit Void. — 

This section has no application where the first affidavit of 
illegality was void. Bridges v. Melton, 34 Ga. App. 480, 
129 S. E- 913. 



Ga — 5 



[129] 



§ 6359 



ENACTMENT OF LAWS 



§ 6437 



CONSTITUTION OF THE STATE OF 
GEORGIA 



ARTICLE l 
Bills of Rights 



SECTION 1 
Rights of the Citizen 



§ 6359. (§ 5700.) Par. 3. Life, liberty, and 
property. 

See annotations to §§ 5206, 6700. 

Right to Hearing — Condemnation Law. — The provisions of 
the' act of the General Assembly to amend the charter of 
Edison, approved August 4, 1923, relating to the condemna- 
tion of land for school purposes, the proceedings for con- 
demnation, and the notice to be given to the owners of prop- 
erty sought to be condemned, are not in violation of this 
section inasmuch as the act provides for a hearing before 
assessors duly appointed after notice, in the same manner 
and under the' same regulations as are contained in the gen- 
eral law for condemnation of private property. Sheppard 
v. Edison, 161 Ga. 907, 132 S. E- 218. 

Same — Tax Law. — ■ If the act of the General Assembly 
furnishes the taxpayers notice and hearing before the act 
becomes operative, there is no lack of due process. The tax- 
payers are presumed to qualify, to inform themselves as to 
the merits of the proposed issues, and to exercise their 
rights as voters in all elections submitted to them. Where' 
they have this opportunity, there is no lack of "due process 
of law" which would nullify proposed legislation. Green v. 
Atlanta, 162 Ga. 641, 648, 135 S. E- 84. 

Zoning Ordinance which deprives a person of the lawful 
use of his property held unconstitutional, under this section. 
Morrow v. Atlanta, 162 Ga. 228, 133 S. E- 345. 

Instances Where Section Not Violated. — The automobile 
law of 1915 is not invalid under this section. Lee v. State, 
163 Ga. 239, 135 S. E- 912. 

Expenditure of municipal funds for special services ren- 
dered in tax valuation, does not deprive citizens of prop- 
erty without due process of law. Tietjen v. Savannah, 161 
Ga. 125, 126, 129 S. E- 653. 

Section 125 of the Penal Code is not unconstitutional as 
violative of this section. Rhoden v. State, 161 Ga. 73, 129 
S. E. 640. 

Same — Ordinances. — Ordinances making a tax assessment 
for street improvement, a lien upon the property, is not vio- 
lative of this section. Baugh v. LaGrange, 161 Ga. 80, 130 
S. E. 69. 

§ 6362. (§ 5703.) Par. 6. Crimination of self 
not compelled. 

Evidence Obtained from Receiver of Accused. — The intro- 
duction of documentary evidence obtained from a receiver 
of the property and assets of one accused of crime, by the 
process of subpoena duces tecum, although such evidence 
may be incriminatory in its nature and tend to convict the' 
accused of crime, is not violative of this section. Rawlings 
v. State, 163 Ga. 406, 136 S. E- 448. 

§ 6364. (§ 5705.) Par. 8. Jeopardy of life, 
etc., more than once, forbidden. 

Cited in Reed v. State, 163 Ga. 206, 212, 135 S. E- 748. 

§ 6370. (§ 5711.) Par. 14. Appropriations to 
sects forbidden. 

See annotations to § 6454. 



§ 6376. (§ 5717.) Par. 20. Contempts. 

Cited in Pullen v. Cleckler, 162 Ga. Ill, 114, 132 S. E- 



761. 



§ 6379. (§ 5720.) Par. 23. Legislative, judi- 
cial, and executive, separate. 

Editor's Note and General Considerations. — The judicial de- 
partment of the government can not interfere with any pro- 
vision made by the legislative branch of the government 
which the General Assembly may deem to be necessary as 
expenses in discharging its duties of legislation. Speer v. 
Martin, 163 Ga. 535, 537, 136 S. E- 425. 

Instances Where Section Not Violated. — The banking law 
of 1919 is not repugnant with this section. 



SECTION 3 

Protection to Person and Property 

§ 6388. (§ 5729.) Paragraph 1. Private ways; 
just compensation. 

Editor's Note and General Considerations— Effect of En- 
hancement of Value upon Amount of Damages. — In the ap- 
plication of this provision of the fundamental law the courts 
have uniformly recognized the rule that where none of the 
property, or only a part of it, is actually taken for public 
use', any enhancement of the market value which arises di- 
rectly from such public improvement and which accrues 
directly to the particular property remaining may be set 
off against the gross damage which may be thus occasioned. 
Muecke v. Macon, 34 Ga. App. 744, 131 S. E- 124. 

Cited in Smith v. Floyd County, 36 Ga. App. 554, 137 S. 
E. 646; Rogers v. Tocco'a Power Co., 161 Ga. 524, 528, 131 
S. E. 517. 

§ 6389. (§ 5730.) Par. 2. Attainder; ex post 
facto and retroactive laws, etc. 

Instances of Valid Acts. — Municipal ordinance requiring 
deposits by consumers of light and water, though having 
meters, not invalid under this section as impairing the ob- 
ligation of contract. Young v. Moultrie, 163 Ga. 829, 831, 137 
S. E. 257. 



SECTION 4 

Special Legislation Forbidden 

§ 6391. (§ 5732.) Paragraph 1. General laws, 
and how varied. 

Instances of Special Laws.— The act of 1924 (Ga. Laws 
1924, p. 275) authorizing counties to change road in a town, 
is a special law and unconstitutional under this section. 
Shore v. Banks County, 162 Ga. 185, 186, 132 S. E. 753. 

Section not applied to special law creating a city charter. 
Baugh v. LaGrange, 161 Ga. 80, 82, 130 S. E- 69. 

§ 6392. (§ 5733)- Par. 2. What acts void. 

Cited in Speer v. Martin, 163 Ga. 535, 539, 136 S. E- 425. 



SECTION 5 
Governmental Rights of the People 
§ 6393. (§ 5734.) Paragraph 1. State rights. 

Cited in Green v. Atlanta, 162 Ga. 641, 648, 135 S. E- 84. 

§ 6394. (§ 5735.) Par. 2. Enumeration of 
rights not deny others. 

Cited in Green v. Atlanta, 162 Ga. 641, 648, 135 S. E- 84. 



ARTICLE 2 
Elective Franchise 



SECTION 1 

Qualification of Voters 

§ 6397. Par. 3. Who entitled to register and 
vote. 

See note under section 34 paragraph 3. 



ARTICLE 3 
Legislative Department 



SECTION 7 
Enactment of Laws 
(§ 5771.) Par. 8. One subject-matter 



§ 6437. 
expressed. 

See application as to section 3438, P. C. §§ 461(12), 419(1). 
Instances Where Section Not Violated. — The banking law 

[130] 



§ 6445 



FINANCE, TAXATION, AND PUBLIC DEBT 



§ 6545 



of 1919 is not repugnant with this section. Felton v. Ben- 
nett, 163 Ga. 849, 137 S. E. 264. 

The act of 1901 to create a new charter for the city of La- 
Grange held not violative of this section. Baugh v. Ea- 
Grange, 161 Ga. 80, 130 S. E. 69. 

Acts of 1925 (Laws 1925, p. 896) amending incorporation 
law of certain school was held not unconstitutional under 
this section. English v. Smith, 162 Ga. 195, 133 S. E- 847. 

Municipal ordinance relating to salaries of firemen was 
held not unconstitutional under this section. Green v. At- 
lanta, 162 Ga. 641, 135 S. E- 84. 

§ 6445. (§ 5779.) Par. 17. Statutes and sec- 
tions of Code, how amended. 

Acts Not Violative.— The acts of 1924 as to recovery for 
homicide of parent (Ga. L. 1924, p. 60) is not unconstitu- 
tional as being in violation of this section. Peeler v. Cen- 
tral, etc., R. Co., 163 Ga. 784, 137 S. E. 24. 

This section was not violated by the act of 1925 amend- 
ing the law under which Barnesville School is incorporated. 
English v. Smith, 162 Ga. 195, 199, 133 S. E- 847. 

§ 6446. (§ 5780.) Par. 18. Corporate powers, 
how granted. 

Cited in Free Gift Society v. Edwards, 163 Ga. 857, 864, 
137 S. E- 382. 



SECTION 9 
Pay of Members 



(§ 5788.) Paragraph 1. Compensa- 



§ 6454. 
tion. 

No Injunction Can Be Granted. — Where the question is 
not raised that the mileage is in an amount in excess of 
that allowed by this section, but this proceeding merely 
seeks to determine under what circumstances such mileage 
may be allowed by the proper committees and presiding 
officers of the General Assembly, the courts can grant no 
injunction to enjoin the Treasurer of the State from paying 
mileage. Speer v. Martin, 163 Ga. 535, 537, 136 S. E. 425. 



ARTICLE 4 

Power of the General Assembly over Taxation, 

etc. 



SECTION 2 

Regulation of Corporations 

§ 6463. (§ 5797.) Paragraph 1. Railroad 
tariffs. 

Section Not Intended to Limit Powers. — Independently of 
this provision, the General Assembly possesses the inherent 
power to regulate public utilities. The conference upon the 
General Assembly of the' powers stated in this section was 
not intended to limit its powers to those expressed in that 
provision. Atlanta Terminal Co. v. Georgia Public Service 
Commission, 163 Ga. 897, 137 S. E- 556. 

§ 6464. (§ 5798.) Par. 2. Right of eminent 
domain; police power. 

Police Power — Regulation of Busses Valid. — Ordinance 

regulating busses for transportation of passengers in 
streets, held not .violative of this section. Schlesinger v. 
Atlanta, 161 Ga. 148, 129 S. E. 861. 



ARTICLE 5 
Executive Department 



SECTION 1 
Governor 
Par. 12. 



Reprieves and 



§ 6481. (§ 5815.) 
pardons. 

Reprieve.— The constitution does not undertake to define 
what is meant by a reprieve; properly construed, a reprieve 
by the executive is nothing but a temporary suspension for 

[ 131 ] 



the period named in the respite of the execution of the sen- 
tence imposed by the court. Gore v. Humphries, 163 Ga. 
106, 114, 135 S. E- 481. 

Stay of Execution. — The contention that only the Governor 
can stay the execution of a sentence in a case where such 
sentence has been suspended by the Governor in the exer- 
cise of his right to suspend the sentence by reprieve is un- 
tenable under P. C. sec. 1069(7). Gore v. Humphries, 163 
Ga. 106, 114, 135 S. E- 481. 



ARTICLE 6 

Judiciary 



SECTION 2 
Supreme Court, and Court of Appeals 
§ 6502. (§ 5836.) Par. 5. Jurisdiction. 

Editor's Note. — In regard to the holding set out in the 
third paragraph under this catchline in the Georgia Code of 
1926, it is said that the decision in the Yesbik case has since 
been considered the chart and guide for the Supreme Court 
in all subsequent cases where the rules there announced 
were applicable. See King v. State, 155 Ga. 707, 712, 118 S- 
E. 368. Eouisville. etc., R. Co. v. Tomlin, 161 Ga. 749, 759, 

132 S. E. 90. 

Constitutional Questions. — In Griggs v. State, 130 Ga. 16, 
60 S. E. 103, the Supreme Court said: "This court will not 
pass upon the' constitutionality of a statute unless it ap- 
pears that the question was made in the court below and 
passed upon by the trial judge, and further that the par- 
ticular provision of the constitution alleged to have been 
offended by the statute was clearly designated." United 
States Fidelity, etc., Co. v. Watts, 35 Ga. App. 447, 451, 

133 S. E. 476. 

§ 6506. Par. 9. Court of Appeals. 

Nature of Question Certified — Constitutional Question. — 

See Daniel v. Claxton, 35 Ga. App. 107, 132 S. E- 411, hold- 
ing the same as the second sentence under this catchline in 
the Georgia Code of 1926, citing Gulf Paving Co. v. Atlanta, 
149 Ga. 114, 99 S. E- 374. 

Dismissal Case Reinstated. — Since the court has never 
formulated the rules contemplated by the amendment of 1916 
and at present no statute or rule provides for the giving of 
notice to counsel of the hearing of cases in this court, where 
counsel did not receive the notice which was mailed to him 
and hence failed to prosecute and the case was dismissed 
the court will reinstate the case in its discretion. Winder 
v. Winder Nat. Bank, 161 Ga. 882, 884, 132 S. E. 217. 

Cited in Winder v. Winder Nat. Bank, 161 Ga. 882, 132 
S. E. 217. 



SECTION 4 

Jurisdiction of Superior Courts 

§ 6516. (§ 5848.) Par. 7. Judgment by the 
court. 

See note under section 5662. 

Cited in Pierce v. Jones, 36 Ga. App. 561, 137 S. E- 296. 



SECTION 16 
Venue 
§ 6540. (§ 5871.) Par. 3. Equity cases. 

See annotation to § 5527. 



SECTION 18 

Jury Trials 

§ 6545. (§ 5876.) Paragraph 1. Trial by 
jury. 

Contempt Proceeding-. — In a proceeding for contempt 
against the defendant, growing out of his alleged violation 
of a mandamus absolute, he is not entitled to a trial by a 
jury when an issue of fact is raised. Gaston v. Shunk Plow 
Co., 161 Ga. 287, 298. 130 S. E- 580. 

Instances Where Section Not Violated.— Section 1697(13) is 
not unconstitutional as violative of this section. Eewis v. 
State Board, 162 Ga. 263, 133 S. E. 469. 

ARTICLE 7 



Finance, Taxation, and Public Debt. 



§ 6551 



AMENDMENTS 



§ 6700 



SECTION l 

Power of Taxation 

§ 6551. (§ 5882.) Paragraph 1. Taxation, 
how and for what purposes exercised. 

Power of Taxation Limited. — The General Assembly has 
only those powers of taxation over the State which it is 
permitted to exercise under the grant of power contained in 
the constitution. Brown v. Martin, 162 Ga. 172, 174, 132 S. 
E. 896. 



SECTION 2 

Taxation and Exemptions 

§ 6553. (§ 5883.) Paragraph 1. Must be uni- 
form, etc.; domestic animals. 

II. TAXES IMPOSED BY MUNICIPALITIES. 

Instances of Municipal Taxes. — Under the general language 
of this section, a leasehold estate in state owned property 
(governor's mansion) is taxable by a municipality. Henry 
Grady Hotel Co. v. Atlanta, 162 Ga. 818, 135 S. E. 68. 



SECTION 6 

Purposes of Taxation by Counties and Cities 
§ 6562. (§ 5892.) Par. 2. Taxing power of 
counties limited. 

The word "reads" does not include "streets'* of munici- 
palities in the county. Mitchell County v. Cochran, 162 
Ga. 810, 815, 134 S. E- 768. 

Applied in Commissioners v. Martin, 161 Ga. 220, 130 S. E- 
569. 

Cited in Bank v. Hagedorn Constr. Co., 162 Ga. 488, 499, 
134 S. E- 310. 



SECTION 7 

Limitation on Municipal Debts 

§ 6563. (§ 5893.) Paragraph 1. Debt of coun- 
ties and cities not to exceed seven per cent. 

Definitions. — A registered voter under this section is one 
who had been lawfully registered and who has the present 
right to vote. Persons merely entitled to be registered or 
those lawfully registered who have been disqualified to vote 
are not included. Daniel v. Claxton, 35 Ga. App. 107, 132 S. 
E. 411. 

Issuance of Notes in Excess of Limit. — An issue of notes 
in excess of the limit allowed by this section is void since 
the tax digest of the county will show the assessed valua- 
tion. And the county cannot make recitals which will estop 
it from denying that the loan is in excess of the limit. 
Baker v. Rockdale County. 161 Ga. 245, 130 S. E. 684. 

Municipal Contract for Property Valuation. — Section is not 
violated by municipal contract for special services in valu- 
ing property for taxation. Tietjen v. Savannah, 161 Ga. 125, 
134, 129 S. E. 653. Such contract was held not to constitute 
a debt within the meaning of the section. Id. 



Par. 2. County and city 



§ 6564. (§ 5894.) 
bonds, how paid. 

Installment Bonds. — Nothing in this section is inconsistent 
with the authorization of an issue of bonds in installments 
and the levy of the tax for the payment of each installment 
in the year of its issue. Brady v. Atlanta, 17 Fed. (2d), 764. 

Cited in Bank v. Hagedorn, etc., Constr. Co., 162 Ga. 488, 
498, 134 S. E. 310. 



ARTICLE 8 
Education 



SECTION 4 
Educational Tax 
§ 6579. (§ 5909.) Paragraph 1. Local taxation 
for public schools. 

Property Subject to Tax Levy. — The taxes provided for by 
this section can only be levied upon "all taxable property of 
the county outside of independent local systems" for the 



support of county schools under the control of county boards 
of education. Almand v. Board, 161 Ga. 911, 131 S. E- 897. 

When Limit Is Reached. — Where the limit of five mills 
has been reached by a local tax for the support of public 
schools, the county authorities can not be compelled, on the 
recommendation of the board of education, to levy an addi- 
tional tax for educational purposes. Such additional tax is 
not permissible under the law, outside of the independent 
local systems. Brown v. Martin, 162 Ga. 172, 132 S. E. 896. 



ARTICLE 9 
Homestead and Exemptions 



SECTION l 

Homestead 

§ 6582. (§ 5912.) Paragraph 1. Homestead 
and exemption. 

Constitutionality — Increase of Exemption. — A debtor's right 
of exemption under this section cannot be increased as to 
debts in existence without violating contract clause of 
Federal Constitution. In re Trammell, 5 Fed. (2d), 326. 

"Setting Apart" of debtor's exempt property is a mere 
identification of property to which exemption shall be ap- 
plied, the burden of securing which is put on the debtor. In 
re Trammell, 5 Fed. (2d), 326. And is timely if made before 
sale, though after levy. Id. 

Same — Bankruptcy Proceedings. — Property exempt under 
this section and section 3416, but not set apart prior to pe- 
tition in bankruptcy, may be set apart in the bankruptcy 
proceeding. In re Trammell, 5 Fed. (2d), 326. And the ac- 
tion of the bankruptcy court is equivalent to action by 
State Court in effectuating exemption. Id. 

What Constitutes Head of a Family. — A resident of Georgia 
having no family within State, but having mother in Poland 
and sister in another state to whom he regularly sends 
money, is not the head of a family within the meaning of 
this section, and section 3416. In re Trammell, 5 Fed. (2d), 
326. 

Alienage of resident of state is no bar to claim of exemp- 
tion provided by Const. Ga. Art. 9, section 1, and section 
3416. In re Trammell, 5 Fed. (2d), 326. 



ARTICLE 11 
Counties and County Officers 



SECTION 1 
Counties 
§ 6594. (§ 5924.) Paragraph 1. Counties are 
corporate bodies. 

Liability of County to Suit Generally. — This section sub- 
jects the counties of this State to suit, but not to suits upon 
all causes of action. It does not make them generally lia- 
ble to suits, like individuals or as municipal corporations. 
Being political subdivisions of the State, they can not be 
sued unless made subject to suit expressly or by necessary 
implication. Decatur County v. Praytor, etc., Contracting 
Co., 163 Ga. 929, 931, 137 S. E. 247. 



SECTION 3 
Uniformity in County Offices 
§ 6600. (§ 5930.) Paragraph 1. County of- 
fices to be uniform. 

Cited in McDaniel v. Thomas, 162 Ga. 592, 593, 133 S. E- 
624. 

CONSTITUTION OF THE UNITED 
STATES 



ARTICLE 8 
Amendments. 
§ 6700. (§ 6030.) Art. 14. [1.] Citizenship. 

Tax Lien upon Property before Improvement. — An act 

making a tax lien upon property before any paving or im- 
orovement is begun on the street for which the tax is levied 
is not unconstitutional as violative of the due process clause 
of this section. Baugh v. LaGrange, 161 Ga. 80, 130 S. E- 69. 



[132] 



THE PENAL CODE 



Crimes and Their Punishment 



PRELIMINARY PROVISIONS 

§ 19. (§ 19). No conviction for an assault or 
attempt when the crime is actually perpetrated. 

Evidence held not authorizing conviction for attempt to 
commit the crime of attempting the making of liquor. Raines 
v. State, 34 Ga. App. 175, 176, 132 S. E- 243. 

§ 30. (§ 30.) Limitations of prosecutions. 

Exception as to Running of Limitation — Allegation and 
Proof. — In a criminal case, where an exception is relied upon 
to prevent the bar of the statute of limitations, it must be 
alleged and proved. Bazemore v. State, 34 Ga. App. 773, 
131 S. E- 177. 



FIRST DIVISION 

Definition of a Crime. Persons Capable of Com- 
mitting. Persons Punishable 



ARTICLE 2 

Infants, Lunatics, Idiots, and Persons Counseling 

Them 

§ 34. (§ 34.) Infant under the age of ten years. 

Applied in McRae v. State, 163 Ga. 336, 342, 136 S. E. 268. 



SECOND DIVISION 
Principals and Accessories in Crime 



ARTICLE 1 
Principals in Fir*st and Second Degree 

§ 42. (§ 42.) Principals in first and second de- 
gree. 

Charge of section upheld. Coggeshall v. State, 161 Ga. 
259, 131 S. E. 57. 

Quoted in Bullard v. State, 34 Ga. App. 198, 200, 128 S. 
E. 920. 



FOURTH DIVISION 
Crimes Against the Person 



ARTICLE l 
Homicide 
§ 61. (§ 61.) Express malice. 

Circumstances Tending to Show Malice. — On the trial of 
a man for the homicide of his sister-in-law, growing out 
of a difficulty in which her husband also was killed by the 
accused, evidence tending to show a previous difficulty be- 
tween the accused and the husband (although such difficulty 
occurred several months prior to the homicide), and the ex- 
istence of bad blood between them, was admissible as tend- 
ing to show malice, intent, or motive in killing the deceased. 
Jeffords v. State, 162 Ga. 573, 134 S. E- 169. 

§ 67. (§ 67.) Involuntary manslaughter. 

Death Caused by Speeding Involuntary Manslaughter. — 

Where one operates an automobile upon a public street or 
highway of this State at a rate of speed penalized by stat- 
ute, or while he is under the influence of intoxicating li- 
quors, and, in consequence thereof, he kills a human being | 
without any intention to do so, he is, under that view of the | 
case most favorable to him, guilty of involuntary man- | 
slaughter. Black v. State, 34 Ga. App. 449, 130 S. E. 591. 

§ 68. (§ 68.) Punishment. 

Refusal to Charge to Consider Words or Threats not Error. 

— It is not erroneous for the court, in instructing the jury on 
the law of voluntary manslaughter, as contained in this 
section, to fail or refuse to charge in immediate connection 
therewith the right of the jury to consider words, threats, 



I or menaces in determining whether the circumstances at- 
tending the homicide were such as to justify the fears of a 
reasonable man that his life was in imminent danger or that 
a felony was about to be committed upon his person. Brown 
v. State, 36 Ga. App. 83, 135 S. E- 513. 

§ 70. (§ 70.) Justifiable homicide. 

Where this Section Governs Case, § 73 Excluded. — Where 
the law of justifiable homicide to prevent the commission 
of a felony upon the person of the slayer, as embraced m 
this section and section 71, is involved, it is error to limit 
the defense to justifiable homicide in a case of mutual com- 
bat as embraced in section 73. Boatwright v. State, 162 
Ga. 378, 134 S. E. 91. 

§ 71. (§ 71.) Fear must be reasonable. 

Danger Apprehended Must Be Urgent and Pressing. — The 

doctrine of reasonable fear does not apply to any case of 
homicide where the danger apprehended is not urgent and 
pressing, or apparently so, at the time of the killing. Martin 
v. State, 36 Ga. App. 288, 291, 136 S. E- 324. 

Request for Instruction as to Reasonable Fears. — Where 
this section had been given in charge, if further instruc- 
tions were desired, relating to the doctrine of reasonable 
fears as applicable to the case, there should have been ap- 
propriate written requests. Paramore v. State, 161 Ga. 166, 
129 S. E. 772. 

§ 72. (§ 72.) Killing in defense. 

Application to Homicide of Officer. — The provisions of this 
section are not applicable to killing of an arresting officer 
who shot at a fleeing automobile. Howell v. State, 162 Ga. 
14, 30, 134 S. E. 59. 

§ 73. (§ 73.) The danger must be urgent. 

Section Applicable for Cases of Mutual Combat. — Where 

the law of justifiable homicide in cases of mutual combat is in- 
volved, the court should instruct the jury that the provi- 
sions of this section are applicable only in the event the 
jury find that the accused and the deceased were engaged in 
mutual combat. Boatwright v. State, 162 Ga. 378, 134 S. E- 
91. See § 70. 

§ 74. (§ 74.) Mutual protection. 

Applied in Chisholm v. State, 162 Ga. 13, 132 &'. E- 388. 

§ 94(1). Sexual intercourse with female under 
fourteen. 

Burden of Proving Capacity to Consent. — A female over 
fourteen years of age is presumed to possess sufficient men- 
tal capacity to intelligently assent to or dissent from acts 
of sexual intercourse; and where in a rape case the conten- 
tion of the State is that a woman above that age did not 
possess such intelligence, the burden rests upon the State 
to establish this fact. Smith v. State, 161 Ga. 421, 131 S. 
E. 163. 

Intercourse with an Imbecile Constitutes Rape Regardless 
of Consent. — A man who has sexual intercourse with an im- 
becile female, who is mentally incapable of expressing any 
intelligent assent or dissent, or of exercising any judgment 
in the matter, is guilty of rape, though no more force is 
used than is necessary to accomplish the carnal act, and 
though the woman offer no resistance. Smith v. State, 161 
Ga. 421, 131 S. E- 163. 

Indictment for Rape — Verd'ct for Fornication Void. — 
Where one is tried on an indictment charging rape and 
drawn under this section, a verdict finding the accused 
guilty of fornication is null and void, and the judgment 
based thereon should be arrested on motion of the defend- 
ant. Holland v. State (this case), 161 Ga. 492, 131 S. E. 
503. Holland v. State, 34 Ga. App. 824, 131 S E- 923. 



ARTICLE 4 
Rape 



ARTICLE 5 

Assault, and Assault and Battery 

§ 97. (§ 97.) Assault with intent to murder. 



[133] 



§ 103 



LARCENY 



§ 168 



Effect of Section 115(1).— Section 115(1) of the Penal Code 
does not in any sense modify or repeal this section. Gazaway 
v. State, 34 Ga. App. 442, 444, 129 S. E- 888. 

Intent Question for Jury. — The intent with which a shot 
is fired is a question for the jury. Gazaway v. State, 34 
Ga. App. 442, 444, 129 S. E- 888. 

§ 103., (§ 103l) Opprobrious words may be 
proved in defense. 

Jury May Consider Conduct of Person Assaulted and De- 
gree of Force Justified. — The jury may consider the actions 
and conduct of the person assaulted at the time of the as- 
sault, with other facts, in determining if force, and what 
degree of force, on the part of the defendant was justified, 
and if not justified, what, if any, effect should be given to 
such facts as in mitigation. Hutchison v. Browning, 34 
Ga. App. 276, 129 S. E. 125. 



charges the offense of blackmailing substantially in the 
language of this section is not demurrable. Beard v. State, 
/36 Ga. App. 266, 136 S. E. 333. 



ARTICLE 7 
Kidnapping, and Industrial Home Children 
§ 110. (§ 110.) Inveigling children. 

Misapprehension as to the Age Is No Excuse. — The fact 
that the accused was ignorant of the girl's age, and that 
he believed, in good faith, and had good grounds to believe, 
that she was more, than eighteen years of age, is no defense 
to an indictment under this section. Smiley v. State, 34 Ga. 
App. 513, 130 S. E- 359. 



ARTICLE 9 
Shooting at Another 
§ 115. (§ 113.) Shooting at another. 

Applied to officer shooting at an automobile in which the 
plaintiff was riding. Copeland v. Dunehoo, 36 Ga. App. 817, 
822, 138 S. E. 267. 

Effect of Section 115(1).— Section 115(1) of the Penal Code' 
does not in any way modify or repeal this section. Gazaway 
v. State, 34 Ga. App. 442, 444, 129 S. E. 888. See annota- 
tion to §' 115(1). 



ARTICLE 9A 

Shooting at Dwelling House 

§ 115(1). Shooting at occupied dwelling pro- 
hibited; penalty. 

Intent under this Section and Section 115. — The misde- 
meanor of unlawfully shooting into an occupied dwelling 
house under this section may be committed without an in- 
tention to maim or wound any person therein; but the in- 
tent to wound under section 115 is an essential element of 
the felony of unlawfully shooting at another. Gazaway v. 
v. State, 34 Ga. 442, 444, 129 S. E- 888. 

Shooting at a Dwelling with Intent to Shoot at Another. — 
While it is a misdemeanor for any person to shoot at any 
occupied dwelling house, yet if, in addition to the essentials 
of that offense, the elements of unlawfully shooting at an- 
other or of assault with intent to murder are made to ap- 
pear, the offender may be punished for the felony so shown. 
Gazaway v. State, 34 Ga. App. 442, 129 S. E- 888. 

Effect of Section upon §§ 97, 115.— This section does not in 
any sense modify or repeal section 115, defining the offense 
of unlawfully shooting at another, or section 97, which de- 
fines the offense of assault with intent to murder. Gaza- 
way v. State, 34 Ga. App. 442, 444, 129 S. E- 888. 



ARTICLE 9B 

Eavesdropper or "Peeping Tom " 

§ 115(2). Unlawful to be eavesdropper 
'Peeping Tom." 

Applied in Cobb v. Bailey, 35 Ga. App. 302, 304, 133 S. 



or 



E. 42. 



ARTICLE 12 
Blackmail and Threatening Letters 
§ 118. (§ 116.) Blackmail defined. 

Charge in the Language of Section. — An indictment which 



ARTICLE 14 

Interfering with Apprentices, Servants, Croppers, 
Farm Laborers, and Employees 

§ 125. (§ 122.) Enticing, and attempting to en- 
tice away, a servant, cropper, or farm laborer. 

Constitutionality. — This section is not violative of the 
constitution, § 6359. Rhoden v. State, 161 Ga. 73, 129 S. E. 
640. 



FIFTH DIVISION 
Crimes Against the Habitations or Persons 



ARTICLE 2 
Burglary 
§ 146. (§ 149.) Burglary defined. 

Allegation as to Place of Business. — Where the house en- 
tered was not a "dwelling, mansion, or storehouse," it must 
be alleged in the indictment that the house was a place 
of business where valuable goods were contained or stored. 
Moody v. State, 36 Ga. App. 284, 136 S. E. 464. 

It is not essential that the house should be expressly de- 
nominated in the indictment as a "place of business," if 
descriptive words are used sufficient to show that the house 
was used as a place of business of another. Moody v. State, 
36 Ga. App. 284, 136 S. E. 464. 

Same — Mere Existence of Valuable Goods Not Sufficient. — 
The mere fact that valuable goods were contained or stored 
therein is not alone sufficient to make the house a place of 
business, within the meaning of section. Moody v. State, 
36 Ga. App. 284, 136 S. E- 464. 

Church Building. — Whether an ordinary church building 
or edifice, appropriated to public worship, is subject to be 
burglarized, is not decided. Moody v. State, 36 Ga. App. 
284, 136 S. E. 464. 

A smokehouse within, 65 feet of the owner's dwelling house 
and used by him as an outhouse and place for storing meat 
is among the buildings referred to in this section regard- 
less of whether the smokehouse is within the same inclosure 
as the dwelling. Moore v. State, 34 Ga. App. 182, 129 S. 
E. 6. 



SIXTH DIVISION 
Crimes Relative to Property 



ARTICLE 1 
Robbery 
§ 148. (§ 151.) Definition. 

Request to Charge Definition of Robbery. — The omission 
to give in charge the definition of robbery as in this sec- 
tion is not error in the absence of request so to do. Gore 
v. State, 162 Ga. 267, 134 S. E- 36. 

§ 149. (§ 152.) By open force, punishment. 

Charge of robbery upheld under the evidence in the case. 
Watkins v. State, 36 Ga. App. 297, 136 S. E- 815. 



ARTICLE 2 
Larceny 
§ 168. (§ 171.) Receiving stolen goods. 

Conviction of Principal Thief. — An indictment under this 
section must allege that the principal thief has been indicted 
and convicted. Ford v. State, 35 Ga. App. 655, 134 S. E. 35 : 

The conviction of the principal is not an element in the 
crime defined in this section, but is a regulation which af- 
fects the time when or the manner in which a person in- 
dicted under said section can be tried. The gist of the of- 
fense created by this section is buying or receiving goods 



[134] 



§ 186 



OFFENSES AGAINST PUBLIC PEACE 



§ 366 



with the felonious knowledge that they were stolen. Ford 
v. State, 35 Ga. App. 655, 134 S. F. 353; 162 Ga. 422, 134 
S. F- 95. 

The record of the conviction of the principal thief is con- 
clusive evidence of his conviction, but is merely prima facie' 
evidence of his guilt; but the introduction of such record 
in evidence by the State places the onus upon the accessory 
of disapproving the guilt of the principal. Ford v. State, 
35 Ga. App. 655, 134 S. F- 353. 

The accessory could waive the conviction of the princi- 
pal and go to trial on the charge preferred against him. 
Ford v. State, 35 Ga. App. 655, 134 S. F- 353. 



ARTICLE 3 

Embezzlement and Fraudulent Conversions 

§ 186. (§ 188.) Embezzlement by the bank or 
other corporate officers, servants, or stockholders. 

Substitution of Stock of Less Value for Stock of More 
Value. — Where the corporate officer substituted certain 
stock of less value for other stock of more value, deposited 
as collateral security, with the intent to defraud, he was 
held guilty of embezzlement under this section. Wilkins v. 
State, 36 Ga. App. 743, 138 S. F. 253. 



ARTICLE 5 
Banking 
§ 211(15). Falsely advertising that deposits are 
insured. — Any officer, director, agent, or employee 
of any bank, who shall advertise by any office sign 
or upon any letterhead, billhead, blank note, re- 
ceipt, certificate, circular, or on any written or 
printed paper that the deposits in said bank are 
insured or are guaranteed, unless such deposits 
are in fact insured or guaranteed in a manner sat- 
isfactory to the Superintendent of Banks and by 
his express permission, shall be guilty of a misde- 
meanor. Acts 1919, pp. 212, 214; 1927, pp. 196, 
205. 

Editor's Note. — This section prior to its amendment made 
the act of advertisement an offense in the event the 
deposits were not in fact insured or guaranteed. The phrase 
"in a manner satisfactory to the superintendent of Banks 
and by his express permission" did not then exist. 



ARTICLE 11 

Firing the Woods 

§ 227. (§ 229.) Who may.— No person but a 
resident of the county where the firing is done, 
owning lands therein, or domiciled thereon, out- 
side of any town incorporation, shall set on fire 
any woods, lands, or marshes, nor shall such per- 
sons, except between the first of January and the 
first of March annually. Cobb, 824; 1927, p. 144. 

Editor's Note.— By the amendment of 1927, the date con- 
tained in the excepting clause was changed from February 
20, April 1, to January 1, March 1. 



SEVENTH DIVISION 

Forgery, Counterfeiting, and Unlawful Cur- 
rency 



ARTICLE 1 

Forgery, Counterfeiting, and Unlawful Cur- 
rency 

§ 231. (§ 233). Forging official certificates, 
etc. 

Where Forged Instrument Composed of Two Partis. — 

Clause 7 applied in Johnson v. State, 36 Ga. App. 310, 136 



S. F. 329, notwithstanding that the forged instrument was 
composed of two parts, the other part being treated as sur- 
plusage. 



EIGHTH DIVISION 

Crimes against the Public Justice and Official 

Duty 



ARTICLE 5. 

Obstructing Legal Process, and Sentence or 
Order of Court 

§ 311, (§ 306). Obstructing legal process. 

Allegation as to Serving of Lawful Process. — An indict- 
ment or accusation based upon this section, which does not 
allege that the officer was attempting to serve or execute a 
lawful process or order, is fatally defective. Prichard v. 
State, 34 Ga. App. 181, 129 S. F- 12. 



ARTICLE 8 

Receiving, Harboring, or Concealing Guilty 

Persons, and Compounding Crimes and 

Penalties 

§ 326. (§ 321). Receiving, harboring, guilty 
person. 

Concealing Body of Murdered Person. — Where A, knowing 
that B is guilty of murder, assists B in concealing the crime 
and the body of the murdered person, A is not thereby 
guilty of "receiving, harboring, or concealing" the murderer, 
within the meaning of this section. Heath v. State, 34 Ga. 
App. 218, 128 S. F. 914. 



ARTICLE 11 

Appointment of Peace-Officers and Detectives 

§ 366. (§ 375.) Other offenses against public 
justice. 

Section Adopts Offenses Punishable at Common Law. — 

This section and section 366 only adopts and make crimes 
in this state offenses against public justice or against the 
public peace which were punishable as such at common law. 
Prichard v. State, 34 Ga. App. 181, 129 S. F- 12. 



ARTICLE 12 

Interfering with Board of Public Welfare 

§ 339(1). Interference with inspection; refus- 
ing access to records. 

Obstructing Officer Arresting without Warrant. — Under 
this section and section 366, a third person can not be pun- 
ished for resisting or obstructing an officer in this state 
who is attempting, without a warrant, to arrest another for 
a violation of the prohibition law of this state. Prichard v 
State, 34 Ga. App. 181, 129 S. F. 12. 



NINTH DIVISION 
Crimes against the Public Peace and Tranquility 



ARTICLE 8 

Other Offenses against Public Peace 

§ 366. (§ 375). Other offences against public 
peace. 

See annotation to section 339. 



[135] 



§ 389 



ILLEGAL PRACTICE OF PROFESSIONS, ETC. 



§ 476(13) 



TENTH DIVISION 

Offenses against Public Morality and Decency, 

Public Health, Public Safety and Convenience, 

Public Trade, Public Policy, Suffrage, Public 

Police 



ARTICLE 8 
Gaming-Houses, Gaming-Tables, and Gambling. 
§ 389 (§ 398). Gaming-houses. 

Cited in Fenner v. Boykin, 3 Fed (2d), 674, 678. 



ARTICLE 9 

Lotteries, Gift Enterprises, Dealing in Futures, 
and Trading-stamps 

§ 397. (§ 406). Lottery tickets. 

Punchboard constituting gambling device under this sec- 
tion. See Hobbs v. K. & S. Sales Co., 35 Ga. App. 226, 230, 
132 S. E. 775. 

§ 398w (§ 407). Carrying on a lottery. 

See annotation to preceding section. 



ARTICLE 12 

Human Bodies, Embalming Illegally, Arbitrary 
, Burial Regulations, and Cemeteries 

§ 40& (§ 415). Illegal removal from grave. 

Disinterment with Consent of the Relatives. — This section 
does not apply in cases in which the disinterment is done by 
and with the consent of relatives entitled to control the 
burial and disposition of the bodies. Fairview Cemetery 
Co. v. Wood, 36 Ga. App. 709, 720, 138 S. F- 88. 



ARTICLE 13 

Disturbing Divine Service, or Societies, Violat- 
ing the Sabbath, Intruding on Camp-grounds, 
Disturbing Schools, Dance-Halls 

§ 419(1). Dancing in public places on Sunday. 

Constitutionally. — The act which enacted this and the fol- 
lowing section is not unconstitutional as violative of § 6437. 
Durden v. State, 161 Ga. 537, 131 S. F. 496. 



ARTICLE 14 

Manufacture and Sale of Intoxicants, and Regu- 
lations as to Liquors, and Substitutes for 
Intoxicants 

§ 442. Drunkenness in public places. 

Acquittal as Bar. — Acquittal under this section was no bar 
to a conviction on an indictment under section 528(21). Smitii 
v. State, 34 Ga. App. 601, 130 S. F. 219. 

Evidence held not authorizing conviction under this sec- 
tion. Chandler v. State. 36 Ga. App. 121, 135 S. E. 494. 



ARTICLE 14D 

Subsequent Prohibitions and Regulations of 
Intoxicating Liquors 

§ 448 (36). Unlawful to carry, receive, or pos- 
sess specified liquors. 

Evidence Not Warranting Allegation. — Where a proceeding 
is instituted under this act, to condemn an automobile al- 
leged to have been used in conveying intoxicating liquors 
over a designated public road, and the evidence does not 
demand a finding that the vehicle was used in conveying 
liquors "on the public roads named in the petition," the 
direction of a verdict "for confiscation is reversible error." 
Wells v. State, 33 Ga. App. 426, 126 S. F- 856. Citizens Aut i 
Co. v. State, 35 Ga. App. 166, 132 S. F- 258. 

§ 448(54). Contraband articles; destruction, 
sale and proceeds. 

Verdict Directed Not Warranted by Evidence Reversible. 

—Where a proceeding is instituted under this section, to 
condemn an automobile alleged to have been used in con- 
veying intoxicating liquors over a designated public road, 
and the evidence does not demand a finding that the ve- 
hicle was used in conveying liquors "on the public roads 
named in the petition," the direction of a verdict "for con- 
fiscation" is reversible error. Citizens Auto Co. v. State, 
35 Ga. App. 166, 132 S. F- 258. 

Burden of Proof upon the State. — In a proceeding under 
this section, to condemn a vehicle or conveyance used in 
transporting liquor, the sale or possession of which is prohi- 
bited by law, the burden is upon the State, the condemner, 
to show that the vehicle or conveyance was used in con- 
veying the prohibited liquors or beverages with the knowl- 
edge of the owner or lessee. Seminole Securities Co. v. 
State, 35 Ga. App. 723, 134 S. F- 625. 



ARTICLE 14A 

Manufacturing, Selling, Keeping, etc, of Prohib- 
ited Liquors and Beverages 

§ 448(3). Prohibited acts specified. 

General Verdict Supported Only by One Court out of Two. 

— It is error to refuse a new trial where an accusation con- 
tained two counts, the first charging a sale of whisky, and 
the second charging possession of whisky, both charges 
growing out of the same transaction, where upon the trial 
the evidence authorizes a conviction upon the second count 
only and the verdict is a general verdict of guilty. Simmons 
v. State, 162 Ga. 316, 134 S. F- 54. 



ARTICLE 15 

Vagrants 
§ 449. Vagrancy defined. 

Proof That Accused Was Able to Work. — A conviction of 
vagrancy under this section is unauthorized where there is 
no proof that the accused was able to work. Bryant v. 
State, 34 Ga. App. 523, 130 S. F- 352. 

Charge as to Age. — Failure to charge the jury that to con- 
vict the defendants the evidence should show that they were 
more than sixteen years of age, is not error, it not appearing 
from the motion for a new trial, or from the evidence, that 
either of the defendants was not of that age. Shank v. 
State, 36 Ga. App. 301, 136 S. F. 332. 



ARTICLE 17B 

Sales of Securities 

§ 461 (8). Unlawful sale, etc., of certain secun 
ties. 

The sale of bonds payable in one year from the date of 
their issue is no offense, under the Georgia securities law. 
Taylor v. State, 34 Ga. App. 4, 128 S. F- 228. 

§ 461 (11). Selling Class "D" securities with- 
out license; advertisements of illegal sales. 

Constitutionality. — So much of this section as makes it a 
felony for an issuer of securities falling within class D to 
sell or offer to sell, etc., is unconstitutional as violative of 
section 6437. Smiths v. State, 161 Ga. 103, 129 S. F- 766. 



ARTICLE 18 

Illegal Practice of Professions, Carrying on Busi- 
ness, and Medical College Diplomas 

§476(13). Motor fuel distributors; penalty. — 

Any distributor who shall fail to register, or 
make monthly returns, or give bond, or pay the 
tax, as herein provided, or who shall fail to do 
any other act in sections 993(293) to 993(300) of 
the civil code required, shall be guilty of a mis- 



[136] 



§ 503(8) 



PUBLIC SAFETY 



§ 528(4) 



demeanor and shall be punished as provided m 
section 1065 of the Penal Code of Georgia. Acts 
1927, p. 108. 

Editor's Note. — Section 476(12) of the code upon the same 

subject, simply provides a punishment for violation of »i 
993(164) -993(168) relative to occupation tax levied on motor- 
fuel distributors. 



ARTICLE 23A 

Vital Statistics 

§§ 503(8) and 503(9). Superseded by the Acts 
of 1927 pp. 353 et seq., herein codified as § 
503 (10). 

§ 503 (10). Violation of vital statistic law by 
any person. — Any person who, for himself or for 
an officer, agent, or employee of any other per- 
son or of any corporation or partnership, (a) 
shall inter, cremate, or otherwise finally dispose 
of a dead body of a human being, or permit the 
same to be done, or shall remove such body from 
the primary registration district in which the 
death occurred or the body was found, withour 
the authority of a burial or removal permit issued 
by the local registrar of the district in which the 
death occurred or in which the body was found, 
or (b) shall refuse or fail to furnish correctly any 
information in his possession, or shall furnish 
false information affecting any certificate of rec- 
ord, required by this Act, or (c) shall wil- 
fully alter otherwise than is provided by 
section 1681(43) or shall falsify any certificate of 
birth or death, or any record established by §§ 
1681(27) to 1681(46) or, (d) being required by 
§§ 1681(27) to 1681(46) to fill out a certificate of 
birth or death and file the same with the local 
registrar, or deliver it upon request, to any person 
charged with the duty of filing the same, shall 
fail, neglect or refuse to perform such duty in the 
manner required by §§ 1681(27) to 1681(46) or, 
(e) being a local registrar or deputy registrar, 
shall fail, neglect, or refuse to perform his duty 
as required by §§ 1681(27) to 1681(46) shall be 
deemed guilty of a misdemeanor, and upon con- 
viction thereof shall for the first offense be fined 
not less than five dollars nor more than fifty dol- 
lars, and for each subsequent offense not less 
than ten nor more than one hundred dollars, or be 
imprisoned in the county jail not more than sixty 
days, or be both fined and imprisoned in the dis- 
cretion of the court. Acts 1927, p. 353. 

§ 503(11) Enforcement of vital statistic law. — 

Each local registrar is hereby charged with strict 
and thorough enforcement of the provisions §§ 
1681(27) to 1681(46) in his registration district, 
under the supervision and direction of the State 
Registrar, and he shall make an immediate report 
to the State Registrar of any violation of this law 
coming to his knowledge, by observation or upon 
complaint of any person, or otherwise. The State 
Registrar is hereby charged with the thorough and 
efficient execution of the provisions of said sec- 
tions in every part of the State, and is hereby 
granted supervisory power over local registrars 
and deputy local registrars, to the end that all its 
requirements shall be uniformly complied with. 
The State Registrar, either personally or by an 
accredited representative, shall have authority to 
investigate cases of irregularity or violation of 



law, and all registrars shall aid him upon requesi 
in such investigations. When he shall deem it 
necessary, he shall report such cases of violations 
of any of the provisions of sections above referred 
to, to the prosecuting attorney of the county, wuh 
the statement o" the facts and circumstances; and 
when any such case is reported to him by the 
State registrar, the prosecuting attorney shall 
forthwith initiate and promptly follow up the 
necessary court proceedings against the person or 
corporation responsible for the alleged violation 
of law. And upon request of the State Registrar, 
the Attorney-general shall assist in the enforce- 
ment of the provisions of said sections. 



ARTICLE 24 

The Public Safety 

§ 517. (§ 515.) Trains must stop within fifty 
feet of each railroad crossing. 

Violation as Negligence at Highway Crossing.— The pur- 
pose of this section is to prevent collisions of trains and can- 
not be invoked by a private individual in a suit for injuries 
sustained at a railway and highway crossing for the purpose 
of showing negligence because the engine failed to stop be- 
fore crossing the track of a nearby intersecting railroad. 
Central, etc., R. Co. v. Griffin, 35 Ga. App. 161, 132 S. E. 
255. 

§ 518(1). Penalty for not erecting blow-posts. 

See notes under sections 2677(1) et seq., citing Iyime-Cola 
Bottling Co. v. Atlanta, etc., R. Co., 34 Ga. App. 103, 128 
S. E- 226. 

§ 519(1). Penalty for breach of duty by engi- 
neer. 

See notes under sections 2677(1) et seq., citing l,ima-Cola 
Bottling Co. v. Atlanta, etc., R. Co., 34 Ga. App. 103, 128 
S. E. 226. 

§ 526(1). Automatic fire-box door required. 

Validity. — The case of Napier v. Atlantic Coast I,ine R. 
Co., 272 U. S. 605, affirmed 2 Fed. (2d) 891, as annotated 
under this catchline in Ga. Code of 1926. 

§ 528(3). Violating Civil Code §§ 1770(1)- 
1770(20) regulating motor vehicles. 

Effect of Acquittal for Drunkardness upon Prosecution. — 

Acquittal on an indictment under P. C. section 442 charging 
the defendant with having appeared in an intoxicated condi- 
tion on a public highway, which intoxication was made mani- 
fest by boisterousness and indecent condition and acting, 
and by vulgar, profane, and unbecoming language, was no 
bar to a conviction on an indictment under this act, charg- 
ing the defendant with having operated an automobile on 
the public highway while in an intoxicated condition. Smith 
v. State, 34 Ga. App. 601, 130 S. E. 219. 

§ 528(3). Violating Civil Code §§ 1770(2)- 
1770(48) regulating motor vehicles. 

Constitutionality. — The title of the act is broad enough to 
authorize the provision making penal the use of a number - 
plate not furnished by the Secretary" of State. This provi- 
sion was germane to the object of the act, directly tending 
to make the provisions of the act effective. I^ee v. State, 163 
Ga. 239, 135 S. E- 912. 

§ 528(4). Violating Civil Code §§ 1770(50)- 
1770(60) regulating motor vehicles. 

Constitutionality. — So much of the motor-vehicle act of 
1921 as undertakes to make penal the failure of the operator 
of a motor-vehicle, when meeting a vehicle approaching in 
the opposite direction, to "turn his vehicle to the right so 
as to give one half of the traveled roadway, if practicable., 
and a fair opportunity to the other to pass by without un- 
necessary interference," is too uncertain and indefinite in its 
terms to be capable of enforcement. Heath v. State, 36 Ga. 
App. 206, 136 S. E- 284. 

A defendant could not lawfully be convicted upon such 
charges. Hale v. State, 21 Ga. App. 658, 94 S. E. 823; Heath 
v. State, 36 Ga. App. 206, 136 S. E- 384; Shupe v. State, 36 
Ga. App. 286, 287, 136 S. E- 331. 



[137] 



§ 632 



SPECIAL PROVISIONS AS TO JURIES 



§ 875 



ARTICLE 35 
Terrapins, Turtles, Fishing, and Oysters 
§ 612. Closed period; seines, nets, gigs, spears. 

Applied in Camp v. State, 34 Ga. App. 591, 130 S. E- 606. 



ARTICLE 39 

Emigrant Agents 
§ 632. (§ 601.) Acting as emigrant agent with- 
out a license. 

The word "emigrants," does not apply to persons who 
have no intention of abandoning their residence in this 
State or of acquiring a domicile outside the State, but who 
leave the State merely for the purpose of temporarily en- 
gaging in work in another State. Benson v. State, 36 Ga. 
App. 87, 135 S. E- 514. 



ARTICLE 43 
Suffrage, Campaign Expenses, Campaign Funds, 
and Political Mass Meetings 
§ 658. (§ 623.) Superintendent to deliver list to 
clerk, etc. 

False Misstatement of Votes. — If the number of votes is 
knowingly and falsely misstated by a superintendent of an 
election, he has failed to discharge a duty imposed upon 
him by law, and he is liable to be prosecuted, under this 
section. Black v. State, 36 Ga. App. 286, 136 S. E- 334. 



ELEVENTH DIVISION 
Offenses Committed by Cheats and Swindlers 



ARTICLE 1 
Deceitful Means or Artful Practices 

§ 703(1). Defrauding hotels and boarding 
houses punishable. 

Necessary for Fraudulent Intent. — The evidence in this 
case did not authorize the jury to find that the defendant, 
with intent to defraud, obtained food and lodging from the 
boarding-house named in the accusation. Cowin v. State, 
35 Ga. App. 499, 133 S. E. 880. 

713. (§ 668). False information as to liens. 

Substitution for Section 719. — Where the judge based his 
instructions to the jury on this section, which was inappli- 
cable to the case on trial, and made no reference to sec. 
719, which was applicable, this was error, as the crime' de- 
fined by the last-named section contains elements which it 
is necessary to allege and prove, different and distinct from 
those necessary to be alleged and proved under this section. 
Sims v. State, 34 Ga. App. 683, 685, 131 S. E. 101. 

§ 716. Proof of intent to defraud. 

Fraudulent Intent — Presumptive Evidence — Burden of 
Proof. — The burden of proving that one accused of a viola- 
tion of this section did not have good cause for quitting the 
hirer rests upon the prosecution (Thorn v. State, 13 Ga. 
App. 10, 78 S. E- 853) ; and this essential proof is not fur- 
nished by the hirer's testimony that the accused "did not 
have any reason for not returning the money or picking 
the cotton." Miller v. State, 34 Ga. App. 140, 128 S. E. 588. 
See also Cofer v. State, 34 Ga. App. 220, 129 S. E. 110. 

A conviction is unauthorized where the evidence fails to 
show that the laborer did not have a good and sufficient 
cause for his failure to perform the contract. Such essen- 
tials are not supplied by statements of the hirer that he 
knew of no good reasons why the laborer did not work for 
him. King v. State, 36 Ga. App. 272, 136 S. E- 466; Cofer 
v. State, 34 Ga. App. 220, 129 S. E- HO. 



THE SUPERIOR COURT— ITS OFFICERS 
AND JURIES 



ARTICLE l 
Jurisdiction of the Court, and Authority of the 

Judges 
§ 792(1). Certiorari on ground that venue or 
time not proved. 



Cited in George v. Rothstein, 35 Ga. App. 126, 132 S. E- 
414. 



ARTICLE 2 

Sessions and Adjournments 

§ 796. (§ 796.) Special terms for either civil or 
criminal business. 

Applied in Rawlings v. State, 163 Ga. 406, 136 S. E- 448. 



ARTICLE 6 
Stenographic Reporter 
§ 810. (§ 810.) Reporters. 

When Paid Out of Public Treasury. — The court could not 
assess as costs against the public treasury in a civil case 
between private parties the expense of requiring the notes 
of the official stenographer to be written out for the benefit 
of the judge. The case of Bugg v. State, 13 Ga. App. 672, 79 
S. E- 748, is distinguished upon the ground that it was a 
criminal proceeding. Macris v. Tsipourses, 35 Ga. App. 
672, 134 S. E. 621. 



ARTICLE 7 
The Grand Jury 
§ 824. Ineligible at next succeeding term. 

Section Modified by Acts of 1921.— The act of 1921 (p. 135), 
being a general law providing that the grand jurors of one 
term might be compelled to serve the following term, modi- 
fied, so far as jurors serving in Walton superior court were 
concerned, the provisions of this section. L,ong v. State, 34 
Ga. App. 125, 128 S. E. 784. 

§ 827. (§ 824.) How summoned. 

Section Directory. — The provision of this statute with re- 
spect to the praecept is directory merely, and not mandatory, 
and a failure of the clerk of the superior court to carry out 
such provision affords no ground for a challenge to the ar- 
ray of the jurors put upon a defendant in a criminal case. 
Newham v. State, 35 Ga. App. 391, 133 S. E- 650, and cases 
cited. 

§ 833. (§ 829.) 



Duty of grand jurors. 



Cited in Gibson v. State, 162 Ga. 504, 134 S. E. 326. 

§ 851(1). Transfer of investigation to grand 
jury of another county. 

Necessity of Indictment Showing Change. — An indictment 
was not void for the reason that the jurisdiction of the 
grand jury of a county to which the investigation was trans- 
ferred under this section to return the indictment did not 
appear from the indictment, it not being stated therein 
that the investigation of the crime had been transferred 
from L,ong County to Tattnall County. Sallette v. State, 
162 Ga. 442, 134 S. E- 68. Sallette v. State, 35 Ga. App. 658, 
134 S. E. 203. 

While it might be better for the indictment to show that 
the trial judge had ordered the transfer, yet the omission of 
such facts from the indictment would not render the in- 
dictment void. See Howell v. State, 162 Ga. 14, 134 S. E. 
59. Sallette v. State. 162 Ga. 442, 134 S. E. 68. 



ARTICLE 9 
The Petit Jury 
§ 854. (§ 850.) Trial by jury. 

Cited in Paramore v. State, 161 Ga. 166, 174, 129 S. E. 

772. 

§ 857. (§ 853). Panels, how made. 

Number of Strikes in Consolidated Case. — Where several 
cases pending against an estate are consolidated in one' pro- 
ceeding against a receiver therefor, the parties so joined have 
a right to only six strikes in selecting a jury. Ellis v. Geer, 
36 Ga. App. 519, 520, 137 S. E- 290. 



ARTICLE 10 
Special Provisions as to Juries 
§ 875. (§ 871.) Juries in special emergencies. 

Applied in Rawlings v. State, 163 Ga. 406, 136 S. E. 448. 



[138] 



§ 876 



CONTINUANCES 



§ 992 



§ 876. (§ 872.) Compensation of jurors, and 
court-bailiffs; subpoena clerks. — The first grand 
jury impanelled at the fall term of the superior 
courts of the several counties shall fix the com- 
pensation of jurors and court bailiffs in the supe- 
rior courts of such counties for the next succeed- 
ing year, such compensation not to exceed $3.00 
per diem; except in counties having a population 
of 200,000 or more, according to the last United 
States census, the compensation of court bailiffs 
as fixed by the grand jury shall be $200.00 per 
month, provided the Commissioners of Roads 
and Revenues, or other authority having control 
of county finances of such counties shall first ap- 
prove the payment of such salaries and the num- 
ber of deputies to be employed in each court; and 
the same compensation shall be allowed to bailiffs 
and jurors of the several city courts and special 
courts in this State, as is allowed bailiffs and ju- 
rors in the superior courts in which such city or 
special court may be located. The pay of tales 
jurors shall be the same as the regular drawn 
traverse jurors, and there shall be no distinction 
in the pay of tales and regular drawn jurors. 

The commissioners of roads and revenues or 
other authority having control of county finances 
of such counties may designate one of said bail- 
iffs as a subpoena clerk in the Superior Court, 
may define his duty and fix his compensation at 
not exceeding two hundred dollars per month, to 
be paid monthly out of the county treasury. Acts 
1890-1, p. 80; 1895, p. 74; 1919, p. 104; 1922, p. 
50; 1925, p. 100; 1927, pp. 135, 193. 

Editor's Note. — The compensation of court bailiffs in coun- 
ties of 200,000 population or more was raised from $150 to 
$200; and the last sentence was added, by the amendment of 
1927. 

§ 876(1). Compensation in counties of 200,- 
000 or more. — In all counties having by the 
United States census of 1920, or any future cen- 
sus, a population of 200,000 inhabitants or more, 
the salaries of court bailiffs appointed by the 
judges of the Superior courts and by the judges 
of the city courts shall be two hundred dollars 
per month for each bailiff, to be paid monthly out 
of the county treasury; provided, however, the 
commissioners of roads and revenues, or other 
county authority having charge of the fiscal af- 
fairs of said county, may, in their discretion, re- 
duce said salaries to any sum not less than one 
hundred and fifty dollars per month for each 
bailiff. Acts 1927, p. 194. 



ARTICLE 3 
Courts of Inquiry, and the Proceedings Therein 
§ 947. (§ 922.) Bail. 

Cited in Fox v. State, 34 Ga. App. 74, 75, 128 S. E. 222. 

§ 948. (§ 923.) Waiving trial. 

Cited in Fox v. State, 34 Ga. App. 74, 75, 128 S. E- 222. 

§ 949. (§ 924.) Disposition of papers. 

Cited in Fox v. State, 34 Ga. App. 74, 75, 128 S. F. 222. 



INDICTMENT AND PRESENTMENT 



ARTICLE l 
Form of Indictment 
§ 954. (§ 929.) Form of indictment. 

Sufficiency of Indictment for Car Breaking. — See Whitener 
v. State, 34 Ga. App. 697, 131 S. F. 301, and note to P. C. 
section 181. 



ARTICLE 2 
When Two Returns of "No Bill" Are a Bar 

§ 955. (§ 930.) Two returns of "no bill" are a 
bar. 

Change of Return after Entry on Minutes. — After a grand 
iury has returned into court a true bill of indictment, and 
the same has been entered on the minutes of the superior 
court by its clerk, the court obtains jurisdiction of the case, 
and the grand jury is without authority, at the same term 
of the court, to recall the true bill, erase the entry of "true 
Hill," and make an entry of "no bill" on the indictment. 
Gibson v. State, 162 Ga. 504, 134 S. F. 326. 



CHANGE OF VENUE 



PROCEEDINGS TO COMMITMENTS, IN- 
CLUSIVE 



ARTICLE 2 
Arrest 
§ 917. (§ 896.) Arrest without warrant. 

Charging Exact Language.— A charge in entire harmony 
but not in exact language of this section and section 921 is 
neither a misstatement of law nor misleading. Cobb v. 
Bailey, 35 Ga. App. 302, 133 S. F. 42. 

§ 918. (§ 897-) Selection of judge to try the 
^ase. 

Cited in Fox v. State, 34 Ga. App. 74, 75, 128 S. E. 222. 

§ 922. (§ 901.) Duty of person arresting. 

CSted in Fox v. State, 34 Ga. App. 74, 75, 128 S. E. 222. 

§ 923. Arresting officer not to advise dismissal 
of warrent. 

Cited in Fox v. State, 34 Ga. App. 74, 75, 128 S. E- 222. 



ARTICLE l 
When and How Venue May Be Changed 
§ 964. (§ 939.) Venue, when and how changed. 

Venue changed under section in Howell v. State, 162 Ga. 
14, 134 S. E. 59. 
Cited in Sallette v. State, 162 Ga. 442, 134 S. E. 68. 

§ 965. (§ 940.) Clerk to transmit papers, etc.; 
subpoenas for witnesses. 

Cited in Howell v. State, 162 Ga. 14, 134 S. E- 59. 



FROM THE CALL OF THE DOCKET TO 
SENTENCE 



ARTICLE 4 
Pleas of Insanity, and Misnomer 
§ 979. (§ 954). Misnomer, plea of. 

Applied in Rountree v. State. 34 Ga. App. 668, 670, 130 S. 
E. 919. 



ARTICLE 10 

Continuances 

§ 987. (§ 962). Continuance for absence of 
witnesses. 

Applied in Teems v. State, 34 Ga. App. 594, 130 S. E. 216. 

§ 992, (§ 966). Discretion of the court. 

Cross- Examination of Defendant on Motion. — It is not a 

reversible error to permit the defendant to be cross-examined 
on his motion for a continuance. Bell v. State, 36 Ga. App. 
Ill, 112, 135 S. E. 521. 



[139] 



§ 995 



COMPETENCY OF WITNESSES 



§ 1037 



ARTICLE 11 
Trial of Joint Offenders 
§ 995. (§ 969). Trial of joint offenders. 

Number of Arguments. — Where two are tried together 
without objection they have a right to only one argument. 
Bloodworth v. State, 161 Ga. 332, 346, 131 S. E. 80. 



ARTICLE 12 

Impaneling the Jury 

§ 997. (§ 971). Putting panel on prisoner. 
Cited in Rawlings v. State, 163 Ga. 406, 136 S. E. 448. 

§ 998. (§ 972). Challenge to the array. 

Grounds for. — If there is objection to individual members 
of the panel of jurors, the challenge should be to the poll, 
and not to the array. Thompson v. Buice, 162 Ga. 556, 134 S. 
E. 303. 

Form. — A challenge to the array, for any cause going to 
show that it was not fairly or improperly empaneled, must 
be in writing. Thompson v. Buice, 162 Ga. 556, 134 S. E- 303. 

§ 999. (§ 973). Challenges for cause. 

Relation in Ninth Degree Illustrated. — A juror who is re- 
lated to the deceased in that his great great grandmother 
was a sister to the deceased's grandfather is sufficient co 
disqualify him. Ethridge v. State, 163 Ga. 186, 136 S. E. n 2. 

§ 1001. (§ 975). Questions on voir dire. 

Paragraph One — When Hearing on Oath Disqualifies. — 

Even though a juror had heard the evidence on a previous 
trial of the same case, this would not disqualify him unless 
he had formed and expressed an opinion from having heard 
the testimony delivered under oath. Ford v. State, 35 Ga. 
App. 655, 657, 134 S. E. 353, and citations. 



ARTICLE 15 
Evidence 
§ 1008, (§ 982). Object of evidence. 

Quoted in Groves v. State, 162 Ga. 161, 162, 132 S. E- "69. 

§ 1010. (§ 984). Circumstantial evidence, when 
sufficient. 

Necessity of Charging Language of Section. — The failure 
of the court to charge the law of circumstantial evidence in 
the exact language of this section is not error. Sellers v. 
State, 36 Ga. App. 653, 137 S. E. 912. 

A charge of court using "should" instead of "must", in 
quoting this section, does not require a new trial. Adams v. 
State, 34 Ga. App. 144, 128 S. E. 924. 

Cited in Hall v. State, 36 Ga. App. 670, 137 S. E. 915. 

§ 1013. (§ 987). When testimony warrants a 
conviction. 

Charge of Court. — A charge substantially in the language 
of this section is not erroneous in that the court failed to 
charge the jury that the testimony should be sufficient to 
satisfy the minds and conscience of a fair and impartial 
jury, etc. Smith v. State, 34 Ga. App. 779, 131 S. E. 923. 

Erroneous Charge under This Section. — The following 
charge under this section was held inaccurate: "Whether 
dependent upon positive or circumstantial evidence, the true 
question in all criminal cases is not that the conclusion to 
which the evidence points may be false, but whether or not 
the state has satisfied the minds and consciences of the 
jury beyond a reasonable doubt of the guilt of the accused." 
King v. State, 163 Ga. 313, 136 S. E- 154. 



§ 1017. (§ 991). Number of witnesses neces- 
sary. 

Charging Part of Section When Inapplicable. — The courc 
did not err in giving in charge this section as to the num- 
ber of witnesses necessary to convict of perjury and certain 
other offenses, although a part of the section was not appli- 
cable to the case where the inapplicable part was explained. 
Pence v. State, 36 Ga. App. 270, 136 S. E. 820. 



§ 1018. (§ 992). Alibi, as a defense. 

Section given in charge. Coggeshall v. State, 161 Ga 
266, 131 S. E. 57. 



ARTICLE IT 
Of Hearsay 
§ 1023. (§ 997). Sometimes original evidence. 

Cited in Sloan v. State, 35 Ga. App. 347, 133 S. E. 269. 

§ 1025 (§ 999.) Declarations of conspirators. 

Applied in Ethridge v. State, 163 Ga. 186, 191, 136 S. E. 72. 

§ 1027. (§ 1001). Testimony of witness on for- 
mer trial. 

Production of Articles Present at Former Trial. — Where 
the testimony, of a deceased witness who had testified at 
the former trial, contained references to certain physical ob- 
jects, which at the former trial were in court, this fact did 
not stop the operation of this section on the ground that 
such articles were not produced in court at the trial now 
under review nor offered in evidence, even though the state 
did not account for their absence. Bloodworth v. State, 161 
Ga. 332, 334, 131 S. E- 80. 



ARTICLE 18 
Of Admissions and Confessions 

§ 1029. (§ 1003). Acquiescence or silence as 
admission. 

Admissibility of Statements Made by Wife. — A former 
statement made in front of her husband and a third person 
may not be proved by the third person unless the statemeir 
when made required an answer or denial. Bowen v. State, 
36 Ga. App. 666, 137 S. E. 793. 

§ 1031. (§ 1005). Weight of such evidence. 

Omission to Charge as to Confessions. — In absence of a 
timely request, the court did not err in omitting to charge 
this section. Even where under the special facts of the 
case, it is the duty of the court without a request to charge 
upon the law of confessions, the omission to do so is not 
cause for a new trial, it appearing that without such con 
fession there was sufficient evidence to warrant the con- 
viction. Gore v. State, 162 Ga. 267, 134 S. E. 36. 



Confession must be volun- 



§ 1032. (§ 1006). 
tary. 

See annotation to preceding section. 

§ 1035. (§ 1009). Confession of conspirators. 

Application of Phrase "After the Enterprise Is Ended." — 

The phrase "after the enterprise is ended," necessarily 
makes admissible any statements made by any of the con 
spirators until the ultimate purpose of the conspiracy has 
been accomplished. Hence where a killing is only an incident 
in carrying out a purpose to accomplish some further ob- 
ject, it would seem to follow from the very wording of the 
section that where the enterprise had not ended, because the 
real purpose of the conspiracy has not been achieved prior 
to the completion of the enterprise, statements made even 
after such a killing and until the purposes of the conspiracy 
has been fully accomplished would be admissible on the trial 
of any of those engaged in the conspiracy. Rawlings v. 
State, 163 Ga. 406, 421, 136 S. E. 448. 



ARTICLE 19 
Prisoner's Statement 
§ 1036. (§ 1010). Prisoner's statement. 

Charge substantially in {lie language of the section up- 
held. Coggeshall v. State, 161 Ga. 259, 265, 131 S. E. 57. 



ARTICLE 20 
Competency of Witnesses 

§ 1037. (§ 1011). Persons not competent or 
compellable. 

4. Husband and wife shall not be competent or 
compellable to give evidence in any criminal pro- 
ceeding for or against each other, except that 
either shall be competent, but not compellable, 

[ 140] 



§ 1038 



VERDICT 



§ 1060(2) 



to testify against the other upon the trial for any 
criminal offense committed, or attempted to have 
been committed, upon the person of either by the 
other. The wife is also competent witness to 
testify for or against her husband in case of 
abandonment of his child, as provided for in sec- 
tion 116 of this Code. Acts 1866, pp. 138, 139; 
1880-1, p. 121; 1887, p. 30; 1927, p. 145. 

Editor's Note. — Prior to the amendment of 1927 the ex- 
ception contained in the fourth subdivision of this section 
concerned only the wife. Nfcw both the husband and wie 
are competent for the purpose specified in the exception. 
Only that subdivision was affected by the amendment. 

Proof of Statements Made by Wife. — Notwithstanding 
the statutory inhibition against the giving of testimony by 
a wife against her husband in a criminal case, yet where 
a wife makes statements in the presence of her husband and 
a third person which would implicate her husband in the 
violation of a criminal statute, and the husband makes no 
denial thereof, the third person may testify as to these 
statements. Bowen v. State, ,36 Ga. App. 666, 137 S. E. 793. 

§ 1038. (§ 1012). Persons who are incompetent 
witnesses. 

Children. — The test as to the competency of a child of tender 
vears to be a witness is knowledge by the child of che 
nature of an oath, and when an examination by the court 
shows that the child has no such knowledge it is error to 
permit the child to testify over proper objection. Horton v. 
State. 35 Ga. App. 493, 133 S. E- 647. 



ARTICLE 21 
Examination of Witnesses 
§ 1045. (§ 1019). Leading questions. 

When Discretion Not Abused. — The discretion of the trial 
judge was not abused, under the facts of the case 
in allowing the solicitor-general to ask certain lead- 
ing questions of certain reluctant witnesses for the state. 
Ethridge v. State, 163 Ga. 186, 195, 136 S. E. 72. 

§ 1046. (§ 1020). Memorandum in aid of wit- 
ness's memory. 

Cited in Adams v. State, 34 Ga. App. 144, 128 S. E- 924. 

§ 1047. (§ 1021). Opinions of witness. 

Applied in Tanner v. State, 163 Ga. 121, 122, 127, 135 S. E. 
917. 



ARTICLE 22 
Impeachment of Witnesses 
§ 1052. (§ 1026). By contradictory statements. 

Determination of Credibility within Province of the Jury. — 

This rule provides for impeachment of a witness and for 
sustaining him when his credibility has been attacked in the 
manner designated, but leaves it to the jury to determine 
whether the witness has testified truthfully. If the witness 
has been sustained by proof of general good character, that 
would go to his credit, but in the absence of such proof the 
truthfulness of his testimony would still be for determination 
by the jury. The mere fact that the witness had made 
statements out of court, contradictory to his testimony at 
the trial, would not as matter of law necessarily deprive his 
testimony of all probative value. King v. State, 163 Ga. 
313, 322, 136 S. E. 154. 



ARTICLE 23 
Argument of Counsel 
§ 1055 (4). Extension of time. 

Necessary Showing. — It is necessary that counsel make a 
showing in the manner prescribed, as to the necessity of an 
extension of time, in order to do justice to the case of their 
client. Where the showing required by the statute is not 
made it will not be held that there was any abuse of dis- 
cretion on the part of the trial judge in refusing to extend 
the time for argument as requested. Bloodworth v. State. 
161 Ga. 332, 346, 131 S. E. 80. 



ARTICLE 24 
Charge of the Court 

§ 1058. (§ 1032.) Judge not to express opinion 
on the facts. 

Statement as to Irrelevant Letter. — Statement that a 
letter offered, which was entirely irrelevant, had no proba- 
tive value, was held not to be a violation of this section. 
Tanner v. State, 163 Ga. 121, 122, 129, 135 S. E. 917. 

Reason for Ruling on Objection to Evidence No Expres- 
sion of Opinion. — When an objection is made to evidence 
offered, the judge has a right, if he deems proper, to 
give the reasons for his decision on the objections; and such 
reasons so given if pertinent to the objections made, do not 
constitute an expression of opinion. Reed v. State, 163 Ga. 
206, 213, 135 S. E. 748. 

Stating an admitted fact does not constitute an expression 
or intimation of opinion. Swain v. State, 162 Ga. 777, 789, 
135 S. E. 187. 

Same — Assumption That Crime Committed. — There beiir s 
nothing in the evidence or in the defendant's statement to 
dispute the fact that the alleged crime was committed, and 
his defense resting solely upon the contention that he did 
not participate in the offense, the court did not violate this 
section in assuming that a crime had been committed. 
Pruitt v. State. 36 Ga. App. 736, 138 S. E- 251. 



ARTICLE 25 

The Verdict 

§ 1059. (§ 1033). Jury judges of law and facts; 
form and construction of verdicts. 

interchanging "Maximum" and "Minimum." — It is rea- 
sonable to construe a verdict finding the accused guilty of 
making intoxicating liquor and fixing a "maximum" pen- 
alty of one year, and a "minimum" penalty of one and a. 
half years as meaning a minimum of one year and a 
maximum of one and one-half years so as to uphold the 
validity of it under this section. Jordan v. State, 36 Ga. 
App. 648, 137 S. E- 798. 

§ 1060 (1). Jury to prescribe minimum and 
maximum term of punishment, when; rules of 
Prison Commission. 

Emphasis of Power to Fix Minimum and Maximum 
Sentence. — The power given to the jury to prescribe a 
minimum and maximum term is emphasized by the further 
provision that "in cases of pleas of guilty, then the judge 
shall have the right to prescribe such minimum and maxi- 
mum term as he may see fit." Mitchell v. State, 34 Ga. App. 
505, 506, 130 S. E- 355. 

Effect of Jury Failing to Fix Maximum and Minimum.-* 
Where the jury failed to prescribe the maximum and mini- 
mum in a burglary case but merely recommended him t"> 
the mercy of the court, the verdict was not in proper form, 
and it was error for the judge to receive it and fix the mini- 
mum and maximum term of punishment. He should have 
sent the jury back to their room with the instruction that 
they fix the minimum and the maximum penalty. Mitchell v. 
State, 34 Ga. App. 505, 130 S. E- 355. 

Right to Poll Jury. — Where the jury returned a maximum- 
minimum sentence and the judge immediately turned to 
the accused and stated that that would be his sentence, the 
accused was not deprived of his right to poll the jury. He 
had this privilege while the verdict was being reduced to 
writing and retired as a judgment. Taylor v. State, 36 Ga. 
App. 639, 642, 138 S. E. 83. Case distinguished from Mc- 
Cullough v. State, 10 Ga. App. 403, 73 S. E. 546. 



§ 1060(2). Punishment to be fixed by city- 
court jury in county of 60,000 to 70,000 popula- 
tion. — Juries in their verdicts upon the trial of all 
cases upon the criminal side of the court, involv- 
ing misdemeanors, in constitutional city courts 
having jurisdiction over counties whose popula- 
tion under the 1920 census of the United States 
was not less than sixty thousand inhabitants and 
not more than seventy thousand inhabitants, and 
over counties whose population under any future 
census of the United States shall be not less than 
sixty thousand inhabitants and not in excess of 

[141] 



§ 1061 



SUPREME COURT 



§ 1101(1) 



seventy thousand inhabitants, shall in their ver- 
dicts prescribe the sentence or punishment to be 
inflicted upon the defendant, in which verdict 
may be imposed an alternative sentence or a sen- 
tence imposing a fine, a term in jail, and a term 
upon the chain-gang, all within the limits pre- 
scribed by law for misdemeanors, either, any, 01 
all of said punishments; and the judge in impos- 
ing the sentence upon the defendant shall follow 
that fixed by the jury in its verdicts. 

In all such courts in cases wherein pleas of 
guiltv shall be entered, then the judge shall have 
the light to prescribe the punishment within the 
limits -ixed by law for misdemeanors. Acts 1927, 
p. 317. 

§ 1061. (§ 1035.) Jury may find the attempt. 

Attempting to Manufacture Liquor. — The evidence was 
held not sufficient to support a verdict of attempting to 
manufacture liquor. Hartline v. State, 34 Ga. App. 224, 129 
S. E. 123. 



ARTICLE 26 
The Sentence 

§ 1062. (§ 1036.) Punishment; recommenda- 
tion of the jury. 

Recommendation of Misdemeanor Punishment for May- 
Tiem. — The failure of the court to instruct the jury that in 
•case they should convict the defendant of mayhem, they 
would have the right to recommend that he be punished as 
for a misdemeanor was not error. Cowart v. State, 34 Ga. 
App. 517, 130 S. E- 358. 

§ 1065. (§ 1039.) Misdemeanors, how pun- 
ished. 

Judge's Discretion in Sentencing. — Where a female, unde^ 
indictment for a misdemeanor, pleads guilty, the judge may 
in his discretion sentence her to labor and confinement in 
the woman's prison on the state farm. Conley v. Pope, 161 
Ga. 462, 131 S. E. 168. 

Dividing Sentence into Two Periods. — The fact that the 
judge divided the sentence into two periods of six months 
each, did not make the total sentence to the chain-gang 
exceed the period fixed by the statute. Scott v. McClelland, 
162 Ga. 443, 445, 133 S. E- 923. 

Sentence to Hard Labor. — A sentence in a misdemeanor 
case which provides that the person convicted shall be con- 
fined at hard labor for the- space of one year at the state 
farm is not in conformity with this section as that section 
orovides that the convict shall "work" or "labor," and this 
does not necessarily mean "hard labor." Screen v. State, 
107 Ga. 715, 33 S. E. 393; Potter v. State, 35 Ga. App. 248, 
132 S. E- 783. 

Power to Give Less than Maximum. — The court, having the 
power to both pass upon the defendant a sentence of twelve 
months and to impose a fine of not exceeding $1,000, could 
do less than both, and could do so without giving the de- 
fendant any election as to paying or refusing to pay the 
fine. Dickson v. Officers of Court, 36 Ga. App. 341, 343, 136 
S. E. 537. 

§ 1066. (§ 1040.) Attempts, how punished. 

Cited in Hartline v. State, 34 Ga. App. 224, 129 S. E. 123. 

§ 1609(1). Electrocution substituted for hang- 
ing. 

Applied in Gore v. Humphries, 163 Ga. 106, 135 S. E. 481. 

§ 1070. (§ 1044). Sentence shall specify time 
and place. 

Fixing New Date for Unexecuted Sentence. — When the day 
fixed by the trial court for the execution of a capital 
sentence has passed, and the sentence for any reason what- 
ever has not been executed, it is the duty of the judge of the 
superior court in which the sentence of death was imposed, 
either in term or in vacation by an order as prescribed by 
law to name and fix a new date for the execution of said 
capital sentence, which shall be not less than ten days nor 
more than twenty days from the date of said order. Gore v. 
Humphries, 163 Ga. 106, 135 S.- E. 481. 



§ 1081(1). Probation of offenders. 

Constitutionality. — This act is not unconstitutional. Wil- 
liams v. State, 162 Ga. 327, 133 S. E. 843; Rhodes v. State, 
162 Ga. 627, 134 S. E. 448. 

Oral Remarks to Sheriff as Constituting Probation. — The 

oral remarks of the judge to the sheriff, in passing sentence 
on the defendant, to watch after her, and if he had further 
trouble with her to take her to the chain-gang, can not be 
construed as placing the defendant upon probation, under 
this act as such oral declarations of the judge constitute no 
part of the sentence. Conley v. Pope, 161 Ga. 462, 131 S. 
E. 168. 

Power to Suspend Sentence. — Under this section the judge 
has no power to pass a sentence and then suspend it, and 
where he has attempted to do so this section has no applica- 
tion. Kemp v. Meads, 162 Ga. 55, 132 S. E- 533. 

The general rule is that a judge of the superior court of 
this State has no authority to suspend execution of a 
sentence imposed by him in a criminal case. Where he does 
suspend such sentence, so much of the sentence as orders 
a suspension may afterwards be revoked and the prisoner 
be required to serve the sentence. Scott v. McClelland, 162 
Ga. 443, 133 S. E. 923. 

§ 1081(4). Delinquent probationers. 

Limitation upon Power to Withdraw Parol. — A parole can 
not lawfully be revoked as a mere matter of caprice. In 
such hearing the judge is the sole judge of the credibility 
of the witnesses, but he is not permitted to withdraw a 
parole unless there be sufficient evidence to authorize a 
finding that one or more of the conditions upon which the 
parole was granted has been violated. Williams v. State, 
162 Ga. 327, 133 S. E- 843. 

Where it can not be determined whether the criminal act 
charged against the probationer as in violation of his paroie 
was committed prior to the imposition of the sentence or 
subsequent thereto, a finding revoking the parole would be 
contrary to law and would not be authorized. Williams v. 
State, 162 Ga. 327, 133 S. E- 843. 

Review on Bill of Exceptions. — Watts v. State, 36 Ga. App. 
215, 136 S. E- 323, followed the cases cited under this catch- 
line in Ga. Code 1926. See also Kennedy v. State, 36 Ga. 
App. 602; 137 S. E- 573; Anderson v. State, 36 Ga. App. 602, 
137 S. E. 572. 

Cited in Taylor v. State, 36 Ga. App. 639, 642, 138 S. E. 83. 



NEW TRIALS, AND THE SUPREME 
COURT 



ARTICLE 1 

When New Trial Will, and Will Not Be 
Granted , 

§ 1088. (§ 1061.) On account of new evidence. 

See annotation under section 5480 of the Civil Code. 



ARTICLE 2 
The Motion and Proceedings Thereon 
§ 1090(1). Objections before trial judge. 

Cited in George v. Rothstein, 35 Ga. App. 126, 132 S. E- 
414. 

§ 1091. (§ 1064.) Motion made after adjourn- 
ment of court. 

Notice Relates to the Time for Absolute Rule.— The notice 
required by this section "relates to the time when the party 
(having at term regularly moved his rule nisi) shall apply 
for his rule absolute," and is complied with when the oppo- 
site party is served with the copy of the motion for new 
trial and the rule nisi issuing thereon twenty days before 
the time at which the hearing is to be had under the rule 
nisi. Coggeshall v. Park, 162 Ga. 78, 80, 132 S. E. 632. 



ARTICLE 3 
The Supreme Court 
§ 1101(1). Proof of venue or time of commis- 
sion of offense. 

Cited in George v. Rothstein, 35 Ga. App. 126, 132 S. E. 



414. 
[142] 



§ 1138(3) 



GEORGIA TRAINING SCHOOL FOR GIRLS 



§ 1259(5) 



SALARIES AND FEES 



ARTICLE 8 

Jury Commissioners and Clerks 

§ 1138(3). Jury Commissioners in Counties of 
two hundred thousand or more. — Jury commis- 
sioners and their clerks in all counties in the 
State having a population, according to the 
United States Census of 1920 or any future cen- 
sus, of two hundred thousand or more shall be 
paid ten dollars ($10.00) each for every day's 
service in revising the jury list, said compensa- 
tion to be paid from the county treasurer; pro- 
vided, however, that any commissioner or clerk 
who is already on the county payroll shall receive 
no additional compensation for services under 
this Act. Acts 1927, p. 222. 

§ 1138(41). Jury Commissioners and clerks in 
counties with population between 33,000 and 33,- 

050. — Jury commissioners and their clerks in all 
counties of this State having a population, 
according to the United States census of 1920, 
of not less than 33,000 and not more than 
33,050, shall be paid five ($5.00) dollars each for 
every day's service in revising the jury-list. Said 
compensation to be paid from the county treas- 
ury. Acts 1927, p. 147. 



ARTICLE 13 

Witnesses from Other Counties, and When 
Venue Is Changed 

§ 1143. (§ 1114.) Subpoena for non-resident 
State's witness. 

Void if Not Signed by Clerk and Solicitor General. — Unless 
at the time a subpoena for a non-resident witness for the 
state in a criminal case is issued it is signed both by the 
clerk of the superior court and the solicitor-general of the 
circuit, it is void. Cody v. Boykin, 163 Ga. 1, 135 S. E. 75. 



THE PENITENTIARY 



ARTICLE 3 

Miscellaneous Provisions 

§ 1230. (§ 1174.) Expenses of trials for es- 
capes. 

Fund Out of Which to Be Paid. — No reference is made 
here or elsewhere in the code as to the fund from which 
the expense is to be paid, and it seems that the provision in 
the act of 1823, that it shall be paid out of the penitentiary 
fund, remains unrepealed. Campbell v. Davison, 162 Ga. 221, 
133 S. E. 468. 



TAX TO SUPPORT PRISIONERS IN CER- 
TAIN COUNTIES 

§ 1236(1). County tax to support prisoners. — 

In those counties in the State of Georgia having 
a population, according to the United States 
census of 1920, or any future census, of not less 
than 44,195 nor more than 63,690 the commission- 
ers of roads and revenues are hereby authorized, 
in their discretion, to levy a tax annually upon 
the taxable property in said counties, the pro- 
ceeds of which are to be used by said commis- 
sioners for the maintenance and support of pris- 
oners, including the chain-gang operated by said 
counties. Acts 1927, p. 339. 



§ 1236(2). Use of chain-gang on municipal 

streets. — Said commissioners may in their dis- 
cretion, for the purpose of keeping said chain- 
gang regularly engaged, employ said chain-gang 
upon the streets or public works of municipali- 
ties located in said counties, as well as upon the 
rural roads and public works of said counties, so 
long as the expense of maintaining and support- 
ing said chain-gang does not exceed the amount 
raised by said tax levy. 

§ 1236(3). Separation of tax fund.— In those 
counties coming within the terms of this Act, in 
which the provisions of the alternative road law, 
contained in the Code of Georgia of 1910, sec- 
tions 694 to 704, inclusive, are in effect, the funds 
derived from tax levies made for the maintenance 
and support of prisoners and the funds derived 
under the provisions of the alternative road law 
shall be kept separate and apart, in order that no 
portion of the tax funds derived under the alter- 
native road law shall be applied to the expense of 
maintaining and supporting the chain-gang while 
engaged in work other than upon the rural roads. 



GEORGIA TRAINING SCHOOL FOR 
GIRLS 



ARTICLE l 

Establishment and Management 

§ 1259(5). No compensation; Oath and bond; 
expenses. — Said Board of Managers shall receive 
no compensation for their services, and they 
shall qualify on said board, taking and subscrib- 
ing to an oath faithfully and impartially to dis- 
charge their duties, and entering into bond in 
such sums and in such securities as shall be pre- 
scribed by the Governor, conditioned on the 
faithful performance of all duties required of 
them in this Act. The actual and necessary ex- 
penses of this Board of Managers incurred in the 
discharge of their official duties, together with 
the expense of making said bonds herein provi- 
ded, shall be paid out of the general appropria- 
tion for said institution. 'Said Board of Mana- 
gers shall organize by electing one of their mem- 
bers as chairman and another as secretary of 
said board; and when it may be deemed advisa- 
ble, said board shall appoint a competent woman 
as superintendent of said institution, at a salary 
to be fixed by said Board of Managers, and shall 
appoint such other employees as may be neces- 
sary to carry on the work of said institution, pre- 
scribing the duties of both the superintendent and 
all other employees; provided, the salary of said 
superintendent and said employees as well as the 
expenses of the Board of Managers shall be paid 
out of the maintenance fund, appropriated by 
§ 1259(3). The superintendent and all other em- 
ployees shall be subject to removal from office at 
any time by said board. It shall be the duty of 
said Board of Managers to meet once every three 
months, for the purpose of attending to such 
matters as may come before them in the man- 
agement of said institution. Special meetings 
may be called by the chairman. Absence from 
any three meetings, unless excused by the 
majority of the members present, shall be 
treated by the Governor as a resignation from 



[143] 



§ 1259(6) 



PENSIONS FOR COUNTY EMPLOYEES 



§ 1519(49) 



office. Acts 1913, pp. 87, 89; 1919, p. 285; 1927, 
p. 341. 

Editor's Note. — The amendment of 1927 combined this sec- 
tion with § 1259(6), and, in addition to other immaterial 
omissions, omitted the word "other" preceding the woi d 
"members" in the last sentence of the combined section. 

§ 1259(6). Included in the amendment to 
§ 1259(5) by the Acts of 1927. 

§ 1259(9). Who may be committed and how; 
fees for carrying persons to school. — The Judges 
of the City and Superior Courts may in their dis- 
cretion commit to the Georgia Training School 
for Girls any girl under eighteen years of age 
who has committed any offense against the laws 
of this State, not punishable by death or life im- 
prisonment, or who habitually associates with 
vicious or immoral people, or who is incorrigible 
to such an extent that she cannot be controlled 
by parent or guardian, there to be held until such 
girl reaches the age of twenty-one, unless sooner 
discharged, bound out, or paroled under the rules 
and regulations of said Board of Managers; pro- 
vided, however, that no girl who is insane or an 
idiot or who comes under the classification of 
mental defectives as defined in section 3 of Act 
approved August 19, 1919, establishing the Geor- 
gia Training School for Mental Defectives, or 
who is afflicted with an incurable disease, shall 
be sentenced or committed to said institution. 
The Judges of the City and Superior Courts may 
hear and determine such cases, presiding in a 
court or in chambers; provided, that any girl 
brought before a court shall have a right to de- 
mand trial by jury, and may appeal from the 
judgment of said court as provided by law. The 
fees that are now allowed by law for carrying 
persons to the penitentiary shall be allowed to 
the sheriffs of the various counties of the State, 
for services in taking such girls as may be com- 
mitted by the several courts to the Georgia 
Training School for Girls. Acts 1913, pp. 87, 90; 
1927, p. 343. 

Editor's Note. — The exception, in the proviso, as to girls 
who came under the classification of mental defective as de- 
fined by the Act of 1919, is new with the amendment of 
1927. 

§ 1259(10). Improper subjects retained; how 
dealt with; parole. — The superintendent in 
charge of such institution be and, with consent of 
the chairman of Board of Managers, shall be 
authorized and empowered to return whence she 
came any girl who shall be found an improper 
subject for admission, and who shall thereupon 
be dealt with by the court or judge committing 
her as would have been legal in the first instance 
had not said girl been committed to the said 
Georgia Training School for Girls; and provided, 
that said Board of Managers shall be authorized 
to discharge or release any inmate from said in- 
stitution, or to liberate conditionally on parole 
any inmate of said institution, under such rules 
and regulations and upon such terms as said 
Board of Managers may deem in the best inter- 
ests of the inmate. Acts 1913, pp. 87, 90; 1927, 
p. 349. 

Editor's Note. — By the amendment of 1927 the Board or 
Managers are authorized to discharge or release any inmate. 
The amendment omitted a provision which authorized the 
Board of Managers to bind out to some suitable person any 
inmate, or return her to her parents or guardian. 



SPECIAL QUASI CRIMINAL 
PROCEEDINGS 

Habeas Corpus 



ARTICLE 1 
Proceedings in Applications for Habeas Corpus 

§ 1307. (§ 1226.) How wife or child may be 
disposed of. 

See annotation to § 2972 of the Civil Code. 

§ 1313. (§ 1232.) Proceedings must be re- 
corded. 

Filing Papers after Hearing by the Judge. — Manifestly this 
section contemplates filing the papers in the proceedings 
with the clerk of the superior court after the hearing by the 
Judge. Collard v. McCormick, 162 Ga. 116, 119, 132 S. E- 
757. 



PENSIONS FOR COUNTY EMPLOYEES 

§ 1519(44). County employees in counties of 
more than 200,000 people. — There may be raised 
and established funds for the aid, relief, and pen- 
sions of the employees of the county and their 
dependents, in all counties having a population 
of more than two hundred thousand by the 
United States census of 1920, or any subsequent 
census of the United States. Acts 1927, p. 262. 

§ 1519(45). Right to retire after 25 years 
service. — Every employee and future employees 
who may participate in the pension fund may as 
a matter of right retire from active service, pro- 
vided he shall have been an employee of the 
county for twenty-five years at the time of his 
retirement. 

§ 1519(46). Voluntary retirement of disabled 
employees. — Any employee who is eligible to 
participate and future employees who are eligi- 
ble to participate, who shall be injured or whose 
health shall become permanently impaired to 
render them totally disabled, shall upon applica- 
tion be retired. Should the board of trustees re- 
fuse to grant an order of retirement, the appli- 
cant shall select a physician, the board shall se- 
lect a physician, and the two physicians so se- 
lected shall select a third, and their decision shall 
decide the question. 

§ 1519(47). Half-pay after retirement; pen- 
sion for widow, etc. — When such employee shall 
retire as a matter of right he shall be paid one- 
half of his salary he was receiving at the time 
of his retirement, for the rest of his life, to be 
paid monthly. In case of death of a pensioner, 
his widow and children or dependents shall draw 
his pension as herein provided. 

§ 1519(48). Half-pay for total disability. — 
When such employees shall be retired for total 
disability, he shall be paid one-half of the sal- 
ary he was receiving at the time of his retire- 
ment, for the rest of his life, to be paid monthly; 
but this Act shall not affect any aid or relief or 
pension received at the time of the passage of 
this Act. 

§ 1519(4=9). Board of trustees for fund; mem- 
bers. — There is hereby established a board of 
trustees whose duties it shall be to manage said 
fund. The board of trustees shall consist of the 
chairman of the commissioners of roads and rev- 
enues, the chief of the county police department, 
and the superintendent of public works of the 



fl44] 



§ 1519(50) 



PENSIONS FOR MUNICIPAL EMPLOYEES 



§ 1519(64) 



county; and if there be no chairman of the com- 
missioners of roads and revenues, and if there 
be no chief of county police, and if there be no 
superintendent of public works, the county au- 
thorities having charge of the affairs of the 
county shall manage said pension funds. The 
trustees shall formulate rules for taking care of 
employees, and prescribe regulations and con- 
ditions under which said aid, relief, and pensions 
shall be paid. The board shall keep a strict ac- 
count of disbursements and receipts of all funds, 
which shall be open at all times to public inspec- 
tion. The board of trustees shall have its first 
meeting on Friday following the first Monday in 
October after the passage of this Act, and or- 
ganize by electing a chairman, a vice-chairman, 
and a secretary. The chairman shall sign all 
vouchers. 

§ 1519(50). Deduction from salaries. — All 

county employees who desire to participate in the 
pension fund shall have two (2) per cent, of their 
salaries deducted monthly. 

§ 1519(51). Return of amount deducted from 
salary. — In case an employee who has not served 
twfenty-five years and whose employment has 
been severed by the county, he shall receive the 
amount deducted from his salary for the pension 
fund. 

§ 1519(52). Involuntary retirement. — In case 
an employee has served twenty-five years does 
not desire to retire, the board of trustees may in 
their discretion retire him, after first obtaining 
the consent of the county commissioners. 

§ 1519(53). Former pensions not affected. — 

This Act shall not repeal nor in any wise affect 
any pensions or benefits or aids now being paid 
to those who were receiving the same and who 
shall receive the same after the passage of this 
Act. 

§ 1519(54). Widow and children, pension of, 
stops when. — When any employee has served 
twenty-five years, and who has not taken a pen- 
sion, dies, his widow and minor children shall re- 
ceive his pension until such widow shall remarry, 
or until such minor children or dependents shall 
have reached the age of sixteen years. 

§ 1519(55). Workmen's compensation law not 
affected. — This Act shall not affect or be af- 
fected by any workmens' compensation law or 
other similar laws. 

PENSIONS FOR MUNICIPAL EMPLOYEES 

§ 1519(56). City employees in cities of above 
150,000 people. — There shall be raised and estab- 
lished funds for the pension of all officers and 
employees now in active service and on the pay- 
rolls, and future officers and employees in all 
cities in Georgia having a population of more 
than one hundred and fifty thousand (150,000) 
by the United States census of 1920, or any sub- 
sequent census of the United States. Acts 1927, 
p. 265. 

§ 1519(57). Right to retire after 25 years serv- 
ice. — Every regular officer and employee of such 
city, in active service at the time of the passage 
of this Act, now on the pay-roll, and future offi- 
cers and employees, may as a matter of right re- 
tire from active service, provided he shall have 



served twenty-five (25) years in active service 
of such city at the time of his retirement. 

§ 1519(58). Half-pay — -When such officer or 
employee shall retire as a matter of right, he shall 
•be paid one-half of the salary he was receiving at 
the time of his retirement, for the rest of his life, 
to be paid monthly. 

§ 1518(59). Board of trustees for fund; mem- 
bers. — There is hereby established a board of 
trustees, to serve without pay, whose duty it shall 
be to see that the provisions of this Act are car- 
ried out by such cities; that the funds are kept 
separate; each of such cities shall have a board 
of trustees composed of the mayor, city comp- 
troller, and city treasurer, or such officials who 
discharge duties usually assigned said officers. 
This board shall make rules describing forms for 
applicants for said pensions, and all other mat- 
ters connected with their duties under this Act. 
When a pension is awarded by said board, the 
award shall be transmitted to the governing au- 
thorities of said city, who shall provide some 
manner for verifying the facts of the petition, or 
other legal requirements; when so verified, a 
check shall >be drawn on the fund provided for 
the payment of the pension each month during 
the life of the pension, signed by the mayor and 
paid by the treasurer with the notation on each 
check that the pension has been approved by the 
governing authority of such city. Said board 
shall designate times and place of meeting, method 
of hearing and decisions, etc. 

§ 1519(60). Deduction of 2 per cent, from sala- 
ries. — The sum of two per centum shall be de- 
ducted from the salaries or wages of all officers 
and employees of such cities as and when paid. 
This sum shall be retained by the city treasurer, 
and is hereby set apart as a pension fund free 
from the control of such cities for any other pur- 
pose of expenditure. 

§ 1519(61). Appropriation to meet deficiency in 
fund. — When pensions are properly allowed and 
become a charge on such cities, and the fund 
derived from the deductions from the salaries and 
wages is not sufficient to meet such pensions, the 
governing authorities of such cities ■shall provide, 
by appropriation from the current funds thereof, 
a sufficient sum to meet said pensions as they fall 
due. 

§ 1519(62). Objectors to deduction excluded.- — 

In case any emplo3^ee or officers objects to the 
deduction of said salary or wages of said two per 
cent, or otherwise objects to the payment of said 
two per centum, such officer or employee shall 
not be entitled to the pension provided by this 
Act. 

§ 1519(63). Supplementary ordinances. — The 
governing authorities of such cities shall be au- 
thorized! to pass ordinances supplementing the 
provisions of this Act where its terms are found 
not to be full enough to provide for the collection 
and payment of such payment. 

§ 1519(64). Funds not assignable or subject to 
garnishment etc — None of the funds herein pro- 
vided for shall be subject to attachment, garnish- 
ment, or judgment, nor shall they be assigned, 
but shall be paid to the pensioner only or on his 
order. 



[145] 



§ 1519(65) 



APPENDIX 



§ 4(c) 



§ 1519(65). Effect as to pensioner under pre- 
vious law. — This Act does not repeal nor in any- 
wise affect any benefit or pension now being 
paid under some previous ordinance or Act, but 
no pensioner shall receive two pensions. Those 
already receiving pensions are not eligible to pen- 
sions under this Act. 

§ 1519(66)- Workmen's compensation law not 
affect d. — This Act shall not affect nor he affected 
by any workmen's compensation law or similar 
laws. 

PENSIONS FOR MUNICIPAL OFFICERS 

§ 1519(67). City officers in cities of above 
150,000 people. — All cities in Georgia having a 
population of more than 150,000 inhabitants by 
the United States census of 1920, or any subse- 
quent census of the United States, shall provide 
pensions for the following heads of departments 
of their assistants or subordinates, to wit: city 
clerk and chief deputy; city attorney and assist- 
ant and investigator; comptroller, assistant and 
auditor; purchasing agent; treasurer and tax- 
collector; tax-assessors, their tax investigator and 
their chief clerk; marshal; building inspector; re- 
corders; health officer; superintendent of Grady 
and Battle Hill sanatorium's; chief of construction, 
assistants in charge of sewers, streets, sidewalks, 
repairs, plumbing, and bridges; chief sanitary in- 
spector and assistant; street-improvement collec- 
tor; superintendent of electrical affairs; warden; 
superintendent of public schools; librarian; gen- 
eral manager of parks and cemeteries; general 
manager of waterworks, together with superin- 
tendent of construction and two chief engineers 
in the waterworks department. If said cities have 
no officials or employees having these particular 
titles then the officials or employees discharging 
the duties nearest to those indicated shall receive 
the pension herein provided. Provided, the of- 
ficers named are in active service in their several 
offices and positions at the time of the passage of 
this Act, and their names are on the pay-roll, and 
likewise for their successors in office or in said 
positions, provided they have served twenty-five 
(25) years in the active service of said city at the 
time of their retirement. In counting this period 
of service, any official who was serving in a mu- 
nicipality annexed to said city, shall have con- 
puted the time of service rendered in the annexed 
municipality in making up said twenty-five (25) 
years. Acts 1927, p. 269. 

§ 1519(68). Right to retire on half-pay. — Said 
officers and employees shall be and they are here- 
by authorized to retire as a matter of right, when 
they shall have passed or attained the required 
years of service, and in such event they shall be 
paid one half of the salary they are receiving at 
the time of such retirement, for the rest of their 
lives, to be paid monthly. 

§ 1519(69). Committee in charge of pensions. 

— It shall be the duty of the governing authori- 
ties of said cities to provide that some standing 
committee shall have charge of these pensions. 
Said committee shall formulate the rules under 
which applications therefor shall be made, and 
provide for the method by which said pen- 
sions may he set up, ordered and established. 



When so ordered and established, they shall re- 
port to the governing authorities and to the comp- 
troller, and same shall thereafter become a fixed 
and binding obligation on the part of the city. 
When so found and reported, the city, through 
its governing authorities shall provide for the pay- 
ment thereof from fund herein provided and its 
current funds, and these payments shall be kept 
up during the lives of said pensioners and funds 
shall be annually provided sufficient to cover the 
payment of said pensions, and same shall be 
promptly paid to said pensioners monthly, and 
shall be one half of the sum received at the time 
of their retirement. 

§ 1519(70). Supplementary ordinances. — Such 
cities shall by their governing .bodies be author- 
ized to pass ordinances carrying into effect the 
purposes of this Act, but not in violation of the 
terms thereof. This is done in order to provide 
for rules and regulations, so that the provisions 
of this Act may he carried out and become ef- 
fective, although its terms may not be sufficiently 
specific to secure the results desired. 

§ 1519(71). Pensions only for those paying 2 
per cent, of salary to fund: — The fund with which 
to pay the pensions herein provided for shall be 
set up as follows: Each of said officials may pay 
into a fund established and set apart by ordinance 
the sum of (2) two per cent, of their salaries 
monthly. Should said fund, at any time, be in- 
sufficient to meet and pay said pensions, such 
cities shall supplement, by approptitiation from 
current funds, sufficient amounts to make up the 
difference. In case any of said officials fail to pay 
said per centum, they shall thereupon become 
ineligible to receive pensions. These matters shall 
be regulated by ordinance. 

§ 1519(72). Not affected by workmen's com- 
pensation law. — This Act shall not affect nor be 
affected by any workmen's compensation laws; 
nor any similar laws; nor shall any pensioner foe 
paid more than one pension, if there are other 
regulations by general law or charter amendment 
under which the pensioner may be paid another 
and different pension. 

§ 1519(73). Meaning of "governing authori- 
ties." — The words "governing authorities," here- 
in used, mean either general council or council 
or commission or other officials in charge of the 
affairs of said city. 

APPENDIX I 

Amendments to Special Acts of 1926 

§ 4(c). Merger; tax rate; counties excluded. — 

Where any local or independent system is re- 
pealed by and in the manner provided in this act, 
the territory formerly included in such independ- 
ent system shall become and constitute a school 
district of the county in which it is located, and 
shall enjoy the same privileges and shall be gov- 
erned by the same laws as other school districts 
in said county, including the authority to levy lo- 
cal taxes for school purposes; provided that the 
rate for such taxation shall not exceed the rate 
allowed Iby law to other similar school districts. 
Provided, that nothing herein contained shall ap- 



[146] 



§ 6452(1) 



APPENDIX 



§ 6563 



ply to a municipal or independent local school 

system of a municipality having a population of 

200,000 or more, according to the last or any 

other United States Census. Acts 1926, pp. 40, 

41; 1927, p. 160. 

Editor's Note. — The last proviso was substituted for a 
previous proviso which had excepted from the operation of 
the section, counties having a population of 200,000 or more. 

APPENDIX II 

Proposed Amendments to the Constitution 

§ 6452(1). Be it enacted by the General Assem- 
bly of the State of Georgia, and it is hereby en- 
acted iby authority of the same, that Article 3, 
Section 7, of the Constitution of Georgia may be 
amended by adding thereto the following para- 
graph, to wit: 

Paragraph 25. The General Assembly of the 
State shall have authority to grant to the govern- 
ing authorities of the cities of Atlanta, Savannah, 
Macon, Augusta, Columbus, LaGrange, Bruns- 
wick, Way cross, Albany, Athens, Rome, Darien, 
Dublin, Decatur, Valdosta, Newnan, Thomaston 
and East Thomaston, and cities having a popula- 
tion of 25,000 or more inhabitants according to the 
United States Census of 1920 or any future cen- 
sus, authority to pass zoning and planning laws 
whereby such cities may be zoned or districted 
for various uses and other or different uses pro- 
hibited therein, and regulating the use for which 
said zones or districts may be set apart, and regu- 
lating the plans for development and improve- 
ment of real estate therein. The General As- 
sembly is given general authority to authorize 
the cities of Atlanta, Savannah, Macon, Augusta, 
Columbus, LaGrange, Brunswick, Wayeross, Al- 
bany, Athens, Rome, Darien, Dublin, Decatur, 
Valdosta, Newnan, Thomaston and East Thom- 
aston, and cities having a population of 25,000 or 
more inhabitants according to the United States 
census of 1920 or any future census, to pass zon- 
ing and planning laws. 

§§ 6490 to 6482. Be it enacted by the General 
Assembly of the State of Georgia and it is hereby 
enacted by authority of the same, that Article 5 
Section 2, of the Constitution of the State of Geor- 
gia be and the same is hereby amended by strik- 
ing from Article 5, Section 2, paragraph two, 
three, and four in their entirety, and inserting in 
lieu of said paragraphs two, three and four a par- 
agraph to be known as paragraph two and to read 
as follows, to wit: "The General Assembly 
shall have power to prescribe the duties, author- 
ity, and salaries of the Secretary of State, Comp- 
troller-General, and Treasurer, and to provide 
help and expenses necessary for the operation of 
the idiepartment of each." 

§ 6523. An amendment is proposed to Article 
6, Section 7, of the Constitution of this State, 
§ 6523, by adding to paragraph one of said sec- 
tion the following words, to wit: "And provided, 
however, that the General Assembly may, in its 
discretion, abolish justice courts and the office of 
justice of the peace and notary public ex-officio 
justice of the peace in any county in this State 
having within its borders a city having a popula- 
tion of over twenty thousand, and establish in 
lieu thereof such court or courts or system of 

[14 



courts as the General Assembly may in its dis- 
cretion deem necessary; or conferring upon ex- 
isting courts, by extension of their jurisdiction*, 
the jurisdiction as to subject-matter now exer- 
cised by justice courts and by justices of the 
peace and notaries public ex-offioio justices of the 
peace; together with such additional jurisdiction, 
either as to amount or to subject-matter, as may 
be provided by law, whereof some other court 
has not exclusive jurisdiction under this Consti- 
tution; together also with such provisions as to 
rules and procedure in such courts and as to new 
trials and the correction of errors in and by said 
courts; and with such further provision for the 
correction of errors by the Superior Court or the 
Court of Appeals or the Supreme Court, as the 
General Assembly may, from time to time, in its 
discretion, provide or authorize. The Munici- 
pal Court of Atlanta shall have jurisdiction in 
Fulton County and outside the city limits of At- 
lanta, either concurrently with, or supplemental 
to, or in lieu of justice courts, as may be now or 
hereafter provided by law. Any court so estab- 
lished shall not be subject to the rules of uniform- 
ity laid down in Paragraph 1 of Section 9 of Ar- 
ticle 6 of the Constitution of Georgia. Provided 
that nothing herein contained shall apply to Rich- 
mond County." 

§ 6533. An amendment is proposed to Para- 
graph 1 of Section 13 of Article 6 of the Consti- 
tution § 6533, as follows: By striking after the 
words "Provided, that the County of Chatham 
shall, from its treasury, pay to Judge of the 
Superior Courts of the Eastern Circuit" the words 
and figures "$3,000.00 per annum," and substitute 
in lieu thereof the words and figures "$5,000.00 
per annum," so that said proviso' when amended 
shall read 1 : "Provided, that the County of Chat- 
ham shall, from its treasury, pay to the judge oi 
the Superior Court of the Eastern Circuit 
$5,000.00 per annum; said payments are hereby 
declared to be a part of the court expenses of 
said county, and shall be made to the judge now 
in office, as well as his successors." 

§ 6563. An amendment is proposed to Article 
7, section 7, Paragraph 1, of the Constitution of 
Georgia, § 6563, as heretofore amended, shall be 
further amended by adding at the end thereof a 
new subparagraph in the following words, to wit: 
"Provided that the City of Columbus may issue 
and sell 'street-improvement bonds' without the 
said assent of two thirds of the qualified voters at 
an election called thereon, but upon a majority 
vote of the members of its governing body, with 
these limitations: First, the terms of such bonds 
shall in no case exceed ten years. Second, the 
amount of each issue shall be limited, to the 
amount assessed by such municipality upon each 
improvement. Third, these bonds shall be issued 
only for the grading, including curbs and gutters, 
or paving or repaving of streets or portions of 
streets or sidewalks. Fourth, the interest thereon 
shall not exceed six per centum per annum. Fifth, 
these bonds may be issued without regard to the 
amount of other outstanding debts or bonds or 
such municipality. Sixth, these bonds not to be 
issued except in case such grading, including 
curbs and gutters, pavement, or repavement has 

7] 



§ 6563 



APPENDIX 



§ 656S 



been petitioned for in writing by the owners of 
more than fifty per cent, of the property abutting 
on the street or portion of street paved or re- 
paved." 

Another amendment to the same section is pro- 
posed as follows: by adding at the end of said 
paragraph the following: Except that the City of 
LaGrange, from time to time as necessary for the 
purpose of repairing, purchasing, or constructing 
a waterworks system, including all necessary 
pipe-line, pumping- stations, reservoirs, or any- 
thing else that may be necessary for the building, 
constructing, or operating a waterworks system 
for the City of LaGrange, may incur a bonded in- 
debtedness in addition to and separate from the 
amount of debts hereinbefore in this paragraph 
allowed to be incurred, to an amount in the aggre- 
gate not exceeding the sum of five hundred 
thousand ($500,000.00) dollars, and such indebt- 
edness not to be incurred except with the assent 
of two-thirds of the qualified voters of said city 
at an election or elections to be held as may now 
or may hereafter be prescribed by law for the in- 
curring of new debts b}' said City of LaGrange. 

By a later act it is proposed that the section 
shall be further amended by adding at the end 
thereof a new subparagraph in the following 
words, to wit: "And except that Fulton County 
and/or Chatham County, and!/or Richmond 
County may, in addition to the debts hereinbefore 
allowed, make temporary loans between March 1st 
and December 1st in each year, to be paid out of 
the taxes received by the county in that year, said 
loans to be evidenced by promissory notes signed 
by the chairman, and clerk of the board having 
charge of the levying of taxes in said county and 
previously authorized by resolution by a -majority 
vote at a regular monthly meeting of such board 
entered on the minutes. The aggregate amount 
of said loans outstanding at any one time shall 
not exceed fifty per cent, of the total gross in- 
come of the county from taxes and other sources 



in the preceding year, and no new loans shall be 
made in one year until all loans made in the 
previous year have been paid in full." 

And finally that the section as heretofore 
amended, shall ibe further amended by adding at 
the end thereof a new subparagraph in the follow- 
ing words, to wit: "And except that the County 
of Ware may be authorized to increase its bonded 
indebtedness in the sum of two hundred and fifty 
thousand dollars in addition to the debts hereinbe- 
fore in this paragraph allowed to be incurred, and 
at a rate of interest not to exceed five per centum. 
per annum; which said -bonds shall run for a pe- 
riod or periods of time not to exceed thirty years,, 
and may be issued from time to time, and in such 
denominations as may be determined by the 
county authorities of said county, to be signed by 
the commissioner of roads and revenues of said 
county, and the clerk of said commissioner, and 
shall be known and designated as Hospital Con- 
struction and Equipment bonds, and which said 
bonds shall be sold, and the proceeds thereof used 
and handled by the commissioner aforesaid, acting 
with the clerk and ordinary, or by a committee or 
commission selected, appointed, and qualified in 
such way or method as such county authority may 
designate. The proceeds of all bonds issued and 
sold under this authority shall be used for the pur- 
pose of acquiring a hospital-site in the City of 
Waycross, or outside of Waycross, in Ware 
County, and building, constructing, and equipping 
thereon a hospital where medical and surgical 
treatment and care may be provided those in need 
of such. The power conferred by this amendment 
shall be exercised under such rules and regulations 
respecting the acquiring of a site, the building 
and equipping of said hospital, as well as the op- 
eration of the same, providing for payment for 
such medical and surgical treatment and care in 
such hospital, excepting only charity oases as the 
county authorities acting alone or in conjunction 
with the Waycroiss medical society may deem 
meet and proper. 



[148] 



Law Library 

University of Georgia 

Athens, Ga, 

Do not remove 



Law Library 

University c< Georgia 

Mhens, Ca. 



INDEX 



. 



ABANDONMENT OF CHILD. 

Witnesses, Penal Code, § 1037. 

ABUTTING OWNERS. 

Street improvements in certain cities, 
see "Special Assessments." 

ACCIDENTS. 

Automobiles. 
Rules in case of accident, § 1770- (60n). 

ACTIONS. 

Automobiles. 
Civil action not abridged, § 1770- 
(60aa). 

ADOPTION OF CHILDREN. 

Notice of adoption of children, § 3016. 

ADVERTISING AGENTS. 

Licenses, § 993(174). 

AFFIDAVIT OF ILLEGALITY. 

County taxation of railroads, § 1041. 

AGRICULTURE. 

Apples and peaches, see "Marks and 

Brands." 
Bonds. 

Commissioner of agriculture, § 2067(1). 
Commissioner of agriculture, §§ 2066- 
(1)-2067(1). 
Apples and peaches. 

Commissioner of agriculture to 
establish grades and marking 
rules, § 2119(9). 
Bond of commissioner, § 2067(1). 
Terms, § 2066(1). 
Department of agriculture, §§ 2066- 

(1) -2082(14). 
Fruits, see "Marks and Brands." 
Peaches, see "Marks and Brands." 

AMENDMENTS. 

Proposed amendments to the Consti- 
tution, Appx. II. 

AMUSEMENT PARKS. 

Licenses, § 993(177). 

AMUSEMENTS. 

Licenses, see "Licenses." 

ANIMALS. 

Licenses. 

Live-stock dealers, § 993(234). 
Notice. 

Tuberculosis, § 2064(2). 

Value of tuberculin animals, § 2064(3). 
Stock law, see "Fences." 
Tuberculosis in domestic animals, 

§ 2064(1) -2064(6). 

ARCHITECTS. 

Licenses, § 993(172). 

ARSON. 

Firing woods, Penal Code, § 227. 

ATHLETIC CLUBS. 

Licenses, § 993(178). 

ATTORNEY AND CLIENT. 

Infants. 

Employment of counsel, § 4804(2). 
Insane, epileptic, feeble-minded and 
inebriate. 

Employment of counsel, § 4804(2). 

ATTORNEY-GENERAL. 

Colored persons. 

Duty of attorney-general, § 2177(20). 
Marriage. 

Duty of attorney-general, § 2177(20). 

AUCTIONS AND AUCTIONEERS. 

Jeweler's liens for repair, § 3364(3). 
Licenses, § 993(179). 

AUTOMOBILES. 

Accidents. 

Rules in case of accident, § 1770(60n). 
Actions. 

Civil action not abridged, § 1770- 
(60aa). 
Acts of 1927, pp. 226 et seq., §§ 1770- 

.60a)-1770(60cc). 
Age of driver, § 1770(60m). 
Badges. 

Chauffeur's badge, § 1770(60c). 
Brakes, § 1770(60i). 
Budget. § 1770(60t). 
Chauffeur. 

Age, § 1770(60m). 




AUTOMOBILES (CoiiFd) 
Chauffeur (Cont'd) 

Application for chauffeur's license, 
§ 1770 (60c). 

Badges, § 1770(60c). 

Definition, § 1770(60b). 
Commissioner of vehicles, § 1770(60a) ; 

Application for registration, § 
1770(60c). 

Salary, § 1770(60v). 

Secretary of state, § 1770(60a). 
Crossings. § 1770(601). 

Definition, § 1770(60b). 
Registration, § 1770(60g). 
Definitions, § 1770(60b). 
Deputies from highway department, 

to enforce law, § 1770(60y). 
Expense. 

Expense to carry out provisions of 
act, § 1770(60t.) 
Fees. 
Disbursement of fees, § 1770(60u). 
Half- rate fees between Aug. 1 and 

Tan. 1, § 1770(60e). 
Licenses, § 1770(60d). 
Permits, § 1770(60d) : 
Registration, licensing, or permit 
fees, § 1770(60d). 
Glass, nails, tacks, etc., § 1770(60w). 
Inspector, § 1770(60x). 
Lamps, § 1770(600. 
Law. 

Deputies from highway department, 

to enforce law, § 1770(60y). 
Partial unconstitutionality, § 1770- 

(60bb). 
Penalty for violation of this Act, § 

1770(60z). 
Sheriffs' and constables' attention to 

be called to, § 1770(60x). 
When effective, § 1770(60cc). 
Law of the road, § 1770(601). 
Licenses, see infra, "Registration." 
Application for chauffeur's license, 

§ 1770(60c). 
Automobile and truck dealers. § 



Athens, Gl< 

not p£nft 

AUTOMOBILES (C 



A ■■ 






1770- 



registered. § 



assembling plants, § 

garages, § 993(186). 
parking-places, § 993- 



993(180). 
Automobile 

993(184). 
Automobile 
Automobile 

(187). 
Automobile tires or accessories; 

(Retail). § 993(183). 
Automobile tires or accessories; 

(Wholesale). § 993(182). 
Automobile truck assembling plants, 

§ 993(185). 
Cars operated for hire, § 993(203). 
Cars operated for hire over fixed 

routes, § 993(204). 
Dealers in used cars. § 993(181). 
"Drive-It-Yourself," § 993(205). 
Fees, § 1770(60d). 
Motor-busses, § 993(244). 
Motorcycle dealers, § 993(246). 
Motor-trucks and trailers, § 993- 

(245). 
Non-resident's license, § 1770(60j). 
Lights. § 1770(601). 

List of vehicles registered, § 1770(60x). 
"Local authorities," § 1770(60b). 
Makers. 

Registration, § 1770(60g). 
"Manufacturer," § 1770(60b). 
"Metallic tires." § 1770(60b). 
"Motorcycle," § 1770(60b). 
Motor fuel distributors, see "Fuel 

Distributors." 
"Motor-vehicle," §_ 1770(60b). 
Municipal corporations. 
Municioal regulations of autos, § 
1770 (60s). 
Non-resident's license, § 1770(60j). 
Number-plates. 
Description, § 1770(60h). 
How attached, § 1770(60h). 
Operation, § 1770 (601). 
"Operator," § 1770(60b). 
"Owner," § 1770(60b). 
Parking, § 1770(601). 
Partial unconstitutionality, § 1770- 

(60bb). 
Penalty for violation of this Act. § 

1770(60z). 
Permit. 

Fees, § 1770(d). 



Cont'd) 
Permit (Cont'd) 
Permits for extra size or weight, § 

1770(60r). 
Receipt for post-office order as per- 
mit, § 1770(60f). 
"Pneumatic tires," § 1770(60b). 
Post-office order. 

Receipt for post-office order as per- 
mit, § 1770(60f). 
Recording acts. § 1770(60c). 
See infra, "Registration." 
Registration, § 1770(60c). 
See infra, "Licenses." 
Application for registration. 

(60c). 
Dealers, § 1770(60g). 
Fees, § 1770(60d.) 
List of vehicles 

1770(60x). 
Makers, § 1770(60g). 
Restriction as to operators, § 1770- 

(60m). 
Restrictions as to traffic, § 1770(601). 
Salary of commissioner of motor - 

vehicles, § 1770(60v). 
Secretary of state. 

Secretary of state, ex-officio com- 
missioner of vehicles, § 1770(60a). 
Service- station, § 993(180). 
Sheriffs and constables. 
Attention to be called to provisions 

of law, § 1770(60x). 
Sheriff's duties defined — inspector, § 
1770(60x). 
Signals, § 1770(601). 
Size. 

Permits for extra 

1770(60r). 
Restriction as to, 
"Solid tires," § 1770(60b). 
Speed. 

Restrictions as to speed, § 1770(60k) 
Statutes, see infra, "Law." 
Throwing things on highways, ! 

1770(60w). 
"Tractor." § 1770(6013). 
Traffic. § 1770(601). 
Traffic rules, § 1770(601). 
"Trailer," § 1770(6%). 
1770(60b). 
I770(60b). 



size or weight, § 
§ 1770(60o). 



"Trucks," 
"Vehicle,' 
Weight. 
Permits 



or weight. 



for extra size 
1770(60r). 
Restriction as to, § 1770(60n). 
Wheels, restriction on, § 1770(60p). 

BAILIFFS. 

Compensation of bailiffs, Penal Code, 

§ 876. 
BAILMENTS. . 

Teweler's liens for repair, see "Liens." 
BANKRUPTCY AND INSOLVENCY. 
Banks, see "Banks and Banking." 
BANKS AND BANKING, §§ 2366(1)- 

2366 (196B). 
Bankruptcy and insolvency, see infra, 
"Taking Possession of Bank by 
Superintendent." 
Branch banks, § 2366(3). 
Checks, see "Negotiable Instruments. 
Criminal law. 

Falsely advertising that deposits are 
insured. Penal Code, § 211(15). 
Death. 
Payment of deposit of deceased de- 
positor, § 2366(194). 
Depositions, § 1249. 
Deoosits. 

Falsely advertising that deoosits are 

insured, Penal Code, § 211(15). 
Ordinaries. 

Deposit of funds, § 4804(7). 
Payment of deposit of deceased de- 
positor, § 2366(194). 
Trust companies, §§ 2821(19). 2821- 
(22). 
Depositions, § 1249. 
Directors. 
Qualification of directors, § 2366(148). 
Semi-annual examinations by di- 
rectors, § 2366(151). 
Dissolution, see infra, "Taking Pos- 
session of Bank of Superintendent." 
Examinations. 

Semi-annual examinations by direc- 
tors, § 2366(151).. 



150 



INDEX 



BANKS AND BANKING (Cont'd) 
Insolvency, see infra, "Taking Pos- 
session of Bank of Superintendent." 
Investments. 

Purchase of stocks and investment 
securities, § 2366(169). 
Licenses, § 993(290). 
Limit of loans by bank, § 2366(159). 
Loans. 

Limit of loans by bank, § 2366(159). 
Purchase of stocks and investment 

securities, § 2366(169). 
Regulation of business. §§ 2366(148)- 
2366(195B). 
Short title, § 2366(196 A). 
Service of process. 
Superintendent of banks, § 2366- 
(196B). 
Short title, § 2366(196A). 
State depositories, § 1249. 
Superintendent of banks, see infra, 
"Taking- Possession of Bank by 
Superintendent." 
Service of process, § 2366(196B). 
"Trust companies, § 2821(17). 
Venue of suits, § 2366(196B). 
Taking possession of bank by superin- 
dent, §§ 2366(56) -2366(75). 
Business resumed, how, § 2366(57). 
Notice of taking possession, § 2366- 

(56). 
Objections to claims, § 2366(67). 
Order of paying debts. § 2366(70). 
Service of process, § 2366Q96B). 
Superintendent may reject claims or 

change rank, § 2366(66). 
Unclaimed deposits and dividends, § 

2366(75). 
Venue of suits, § 2366(196B). 
Taxation, § 993(290). 

Trusty companies, see "Trust Com- 
panies." 
Venue. 

Suits against superintendent, § 
2366 (196B). 

BASEBALL. 

Licenses. 
Selling in baseball parks, § 993(253). 

BIRTH, see "Vital Statistics." 
Birth certificate, §§ 1681 (39) -1681 (41), 
1681(46). 

BOND COMMISSIONER. 

Fees pf commissioner, § 233. 
State treasurer ex-officio bond com- 
missioner, § 232. 

BONDS. 

Agriculture. 
Commissioner of agriculture, § 
2067(1). 
Trust companies. 
Dealing in stocks and bonds, § 2821- 
(20). 

BOWLING ALLEYS. 

Licenses, § 993(216). 

BRANCH BANKS, § 2366(3). 

BRANDS AND MARKS, see "Marks 

and Brands." 

BRIDGES. 

Licenses. 
Toll-bridges, § 993(272). 

BROKERS. 

Licenses. 

Insurance brokers, § 993(227). 

Stocks and bonds, § 993(198). 
Real estate brokers, §§ 993(199), 1896(13). 

Fees for licenses, § 1896(13). 

Licenses, §§ 993(199), 1896(13). 

Provisions, where inapplicable, § 

(< 1896(5). 

"Real estate broker" and "real es- 
tate salesman" defined, § 1896(5). 

BUDGET. 

Automobiles, § 1770(60t). 

BUILDING AND LOAN ASSOCIA- 
TIONS. 

Licenses, § 993(291). 
Taxation, § 993(291). 

BUREAU OF VITAL STATISTICS, 

§ 1681(28). 

BURIAL PERMIT, 

(35) -1681(37). 

CANALS. 

Licenses, *§ 993(288). 
Taxation, § 993(288). 

CARNIVALS. 

Licenses, § 993(212). 



§§ 1681(31), 1681 



CEMETERIES. I 

Licenses, § 993(207). 
Removal permit, § 1681(31). 

CHAIN GANG. 

Municipal corporations, Penal Code. § 
1236(2). 

CHATTEL MORTGAGE. 

Setting aside judgment, § 5968(4). 

CHECKS, see "Negotiable Instru- 
ments." 

CHIROPODIST. 

Licenses, § 993(172). 

CHIROPRACTIC. 

Licenses, § 993(172). 
Itinerant, § 993(261). 

CIRCUSES. 

Licenses, §§ 993 (208) -993 (209). 

CLERKS OF COURT. 

Maps and plats. 
Endorsement of plat for laying out 

street or highway, § 4901(6). 
Report of city planning commission, 
§ 4901(6). 
Streets and highways. 
Endorsement of plat for laying out 
street or highway, § 4901(6). 

COLLECTING AGENTS. 

Licenses, § 993(175). 

COLORED PERSON, §§ 2177 -2177(19). 
Application for marriage license, § 

2177(8). 
Application for marriage license by 

one not born in this State, § 2177- 

.QD- 

Filing application for marriage li- 
cense, § 2177(9). 
Form of application for marriage li- 
cense, § 2177(8). 
Non-residents, § 2177(11). 
Report by state registrar of vital 
statistics after examination as to 
registration of applicant, § 2177(10). 
Unlawful for whites to marry other 
than white; penalty, § 2177(14). 
Attorney -general. 

Duty of attorney-general, § 2177(20). 
Definitions, §§ 2177-2177(12). 
Forms, §§ 2177(1) -2177(3). 
Form of application for marriage li- 
cense, § 2177(8). 
Registration as to race, §§ 2177(1)- 
2177(3). 
Marriage. 
Application for marriage license, see 
infra, "Application for Marriage Li- 
cense." 
Filing application for marriage license, 

§ 2177(9). 
Report by state registrar of vital sta- 
tistics after examination as to reg- 
istration of applicant, § 2177(10). 
Return of license after marriage, § 
_ 2177(12). 
Miscegenation, see "Miscegenation." 
Ordinary's noncompliance with law, § 

2177(16). 
Performing marriage ceremonv in vio- 
lation of law, § 2177(17). 
See infra, "Regulation." 
Registration, § 2177(1). 

False registration, felonv; punish- 
ment, § 2177(7). 
Fee for registration 30 cents: how 

divided, § 2177(6). 
Forms, §§ 2177(1) -2177(3). 
Local registrar must cause each per- 
son in district to execute form, 
etc., § 2177(3). 
Penalty for refusal to. execute regis- 
tration certificate, etc., § 2177(5). 
Registration as to race, §§ 2177(1)- 

2177(7). 
Untrue statement, § 2177(4). 
Report of violation of law, § 2177(18). 
Solicitor -general. 

Duty of solicitor-general. § 2177(20). 
Supply of forms, § 2177(2). 
Vital statistics. 

Local registrar must cause each per- 
son in district to execute form, 
etc., § 2177(3). 
Registration as to race, § 2177(1). 
Supply of forms, § 2177(2). 
Who are persons of color, § 2177. 

COMMERCIAL AGENTS. 

Licenses, § 993 (175). 

COMMISSIONER OF AGRICUL- 
TURE, see "Agriculture." 



COMMITMENT AND PRELIMINARY 
EXAMINATION. 

Georgia Training School for Girls, 
Penal Code, §§ 1259(9), 1259(10). 

COMPTROLLER-GENERAL. 

Gasoline. 
Appointment of state oil chemist, § 

1814(12). 
Duty to collect and test samples, § 
1814(16). 
Oils. 

Appointment of state oil chemist, § 

1814(12). 
Duty to collect and test samples, § 
1814(16). 
Salary. 
Proposed amendment to the Consti- 
tution, Appx. II, §§ 6490-6492. 

CONSTITUTION OF GEORGIA. 

Proposed Amendments to the Consti- 
tution, Appx. II. 

CONTRACTORS. 

Licenses. 
Plumbing, heating, steam- fitting and 
tinning contractors, § 993(278). 

CORPORATIONS, §§ 2209-2928(50). 
Banks .and banking, see "Banks and 

Banking. ' 
Licenses, §§ 993(213), 993(214). 

Foreign, § 993(214). 

Presidents and officers of corpora- 
tions. § 993(173). 

Return by resident agents, § 993(292). 
Officers and agents. 

Licenses, § 993(173). 
Stock and stockholders. 

Trust companies dealing in stocks and 
bonds, § 2821(20). 
Taxation, see infra, "Licenses." 

Return by resident agents, § 993(292). 
Trust companies, see "Trust Compa- 
nies." 

COUNTIES. 

Authority of Ware County to increase 
bonded debt for hospital. 
Proposed amendment to the Consti- 
tution, Appx. II, § 6563. 
Boards of education, § 1551(84^). 
Bonds. 

Residue of bond issue used for im- 
provements, § 431(4). 
Use of balance of proceeds of bond 
issue, to pay warrants in certain 
counties, § 431(4). 
Boundaries. 
Change of county lines. 

Election in town of 400 to 500 pop- 
ulation, § 471(1). 
Countv officers. 

Abolition of fee system in certain 

counties, see "Fees." 
Pensions, see "Pensions." 
Salaries. 
Abolition of fee system in certain 
counties, see "Fees." 
Elections. 

Change of county lines. 

Election in town of 400 to 5TK) pop- 
ulation, § 471(1). 
Fees. 
Abolition of fee system in certain 
counties, see "Fees." 
Inter-county improvements. 

Residue of bond issue used for im- 
provements, § 431(4). 
Use of balance of proceeds of bond 
issue, to pay warrants in certain 
counties, § 431(4)^ 
Ordinaries, see "Ordinaries." 
Pensions for county employees, see 

"Pensions." 
Taxation. 
Railroads. 
Affidavit of illegality, § 1041. 

COUNTY MANAGER FORM OF 
GOVERNMENT. 

Operation of statute, § 615(24). 
Uniform county manager form of gov- 
ernment provided, § 615(24). 



COURTS. 

Compensation, Penal Code, §§ 876, 
876(1). 
Ordinaries, see "Ordinaries." 

CRIMINAL LAW. 

Banks and banking. 

Falsely advertising that deposits are 
insured, Penal Code, § 211(15). 
Convicts, see "Prisons and Prisoners. 
Firing woods, Penal Code, § 227. 
Gasoline. 

Sale without test, § 1814(11). 

Violation of act or rule, § 1814(20). 



INDEX 



151 



CRIMINAL LAW (Cont'd) 

Motor fuel distributors, renal Code, § 

476(13). 
Oils. 

Sale without test, § 1814(11). 

Violation of act or rule, § 1814(20). 
Prisons and prisoners, see "Prisons and 

Prisoners." 
Vital statistics, see "Vital Statistics. 
Witnesses. 

Husband and wife, Penal Code, § 
1037. 

CROSSINGS. 

Automobiles, § 1770(601). 
Grade crossings. 

Adoption of layout, § 2677(18). 

Agreements as to relocation, etc., § 
2677(20). 

Agreement to apportion work, § 
2677(19). 

Automatic signaling device required, 
§ 2677(2). 

Closing crossings, § 2677(30). 

Cost where different railroads in- 
volved, § 2677(29). 

Definition, § 2677(17). 

Division of cost, § 2677(21). 

Elimination of grade crossings, § 
2677(16). 

Improvement of underpass or over- 
pass, § 2677(23). 

Judicial review of order, etc., of de- 
partment or board, § 2677(26). 

Limit of annual expenditure of rail- 
road, § 2677(31).